Upper Tribunal (Immigration and asylum chamber), 2020-09-11, [2020] UKUT 312 (IAC) (Zulfiqar ('Foreign criminal'; British citizen))
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge O'Callaghan, Upper Tribunal Judge Mandalia |
| Status | Reported |
| Date | 11 September 2020 |
| Published date | 23 November 2020 |
| Hearing Date | 27 August 2020 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | 'Foreign criminal'; British citizen |
| Appeal Number | [2020] UKUT 312 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
Zulfiqar ('Foreign criminal'; British citizen) [2020] UKUT 00312 (IAC)
THE IMMIGRATION ACTS
|
Heard at Birmingham Civil Justice Centre |
Decision & Reasons Promulgated |
|
On 5 August 2020 Heard at Field House On 27 August 2020 |
|
|
|
………………………………… |
Before
UPPER TRIBUNAL JUDGE O’CALLAGHAN
UPPER TRIBUNAL JUDGE MANDALIA
Between
SAJID ZULFIQAR
(ANONYMITY DIRECTION NOT MADE)
Appellant
-and-
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr S Muquit, Counsel, instructed by Turpin & Miller LLP
For the Respondent: Mr T Lindsay, Senior Presenting Officer
-
The meaning of 'foreign criminal' is not consistent over the Nationality, Immigration and Asylum Act 2002 and the UK Borders Act 2007.
-
Section 32 of the 2007 Act creates a designated class of offender that is a foreign criminal and establishes the consequences of such designation. That is, for the purposes of section 3(5)(a) of the Immigration Act 1971, the deportation of that person is conducive to the public good and the respondent must make a deportation order in respect of that person.
-
A temporal link is established by section 32(1) requiring the foreign offender not to be a British citizen at the date of conviction.
-
Part 5A of the 2002 Act prescribes a domestically refined approach to the public interest considerations which the Tribunal is required to take into account when considering article 8 in a deportation appeal. Unlike the 2007 Act it is not a statutory change to the power to deport, rather it is a domestic refinement as to the consideration of the public interest question.
-
Part 5A establishes no temporal link to the date of conviction, rather the relevant date for establishing whether an offender is a foreign criminal is the date of the decision subject to the exercise of an appeal on human rights grounds under section 82(1)(b) of the 2002 Act.
-
In such a case, the weight to be given to former British citizenship is case-sensitive.
DECISION AND REASONS
-
Introduction
-
Both members of the panel have contributed to this decision.
-
This is an appeal against a decision of Judge of the First-tier Tribunal Feeney (‘the Judge’) sent to the parties on 13 November 2019 dismissing the appellant’s appeal against a decision of the respondent to refuse an application for leave to remain on human rights (article 8 ECHR) grounds and to deport him to Pakistan.
-
Designated Judge of the First-tier Tribunal McClure granted permission to appeal on all grounds advanced by the appellant by a decision sent to the parties on 11 December 2019.
-
Remote hearing
-
The hearing before us was a Skype for Business video conference hearing held during the Covid-19 pandemic. On the first day, 5 August 2020, we were present in a hearing room situated in the Birmingham Civil Justice Centre. The hearing was not concluded on the day and resumed with us sitting at Field House on 27 August 2020. On both occasions the hearing rooms and the buildings were open to the public. Both hearings and their starting time were publicly listed. We were addressed by the representatives in exactly the same way as if we were together in the hearing room. We are 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.
-
The parties agreed that all relevant documents were before us. The video and audio link were connected between the representatives and the Tribunal throughout the hearing. At the conclusion of the hearing both parties confirmed that the hearing had been completed fairly.
-
No member of the public attended the hearing either remotely or in person. Mr. Muquit confirmed at a preliminary hearing in March 2020 that there was no request for the appellant to be produced from HMP Norwich to attend the hearing. We accept that the appellant was content to rely upon his representative’s attendance before us on his behalf and further accept that the appellant has remained thoroughly engaged in his appeal.
-
Anonymity
-
The Judge was not requested to issue an anonymity direction. The applicant requested such direction before this Tribunal relying upon the media coverage of the index offence, murder, at the time of his trial and thereafter, particularly on what are identified by the applicant to be far-right anti-immigrant websites. He further relied upon the impact of publication upon his wife and her two children.
-
We are mindful of Guidance Note 2013 No 1 concerned with the issuing of an anonymity direction and we observe that the starting point for consideration of such a direction in this Chamber of the Upper Tribunal, as in all courts and tribunals, is open justice. The principle of open justice is fundamental to the common law. The rationale for this is to protect the rights of the parties and to maintain public confidence in the administration of justice. Revelation of the identity of the parties is an important part of open justice: Re: Guardian News & Media Ltd [2010] UKSC 1, [2010] 2 AC 697. Such revelation has an important practical benefit in ensuring public scrutiny of and confidence in the justice system.
-
In the present case the appellant’s private and family life are interests which must be respected. On the other side, publication of our decision and the accompanying identification of the appellant is a matter of general public interest as it accords with the principle of open justice.
-
At the hearing on 5 August 2020 we refused the appellant’s application for anonymity, concluding that the appellant’s concern as to the identification of his wife and her children to the wider public could properly be addressed by the less draconian use of referring to them in this decision by initials. In reaching our decision we observe that paragraph 18 of the Guidance Note confirms that the identity of children whether they are appellants or the children of an appellant (or otherwise concerned with the proceedings), will not normally be disclosed nor will their school, the names of their teacher or any social worker or health professional with whom they are concerned, unless there are good reasons in the interests of justice to do so. We are satisfied that there is no requirement to name either the appellant’s wife or her children and we have ensured that no reference is made to where they reside, the ages of the children or what school they attend.
-
As for the appellant’s concern that publication of his name will present a future risk to him from active members of the far-right, he has failed to demonstrate risks to his life and safety such as to require the principle of open justice and the right to freedom of expression protected by article 10 of the ECHR to be outweighed by his article 8 private life rights. In reaching our conclusion on this issue we are mindful that there is a consistent line of authority emphasising the importance of open justice and the permitting of media reporting of judicial proceedings: Khuja v Times Newspapers Ltd [2017] UKSC 49, [2019] A.C. 161.
-
The appellant
-
The appellant is a national of Pakistan and is aged 40. His father was naturalised as a British citizen in 1973 and his mother in 1981. At the time of the index offence the appellant was a dual national. He held British nationality having been born in this country in 1979 and is a citizen of Pakistan by descent.
-
He has resided in the United Kingdom since birth and attended primary and secondary school in this country. Upon leaving school he initially worked with Royal Mail and was then self-employed, operating a car dealership in east London.
-
Prior to the index offence, the appellant had accumulated 5 previous convictions for 8 offences involving taking a motor vehicle without consent, driving a vehicle with no insurance, driving a motor vehicle with excess alcohol, obtaining property by deception and possession of drugs.
Index offence
-
The index offence, murder, was committed in the company of two other men during the early hours of Sunday 7 November 2004. Following the incident, all three men travelled from east London to a hotel in Pontefract, West Yorkshire, where they were arrested. The appellant admitted to the police that all three men were planning to leave the country and travel to Pakistan to avoid arrest and prosecution. He further admitted to having been binge-drinking over the weekend of...
To continue reading
Request your trial