Upper Tribunal (Immigration and asylum chamber), 2020-12-22, PA/10448/2017
| Jurisdiction | UK Non-devolved |
| Date | 22 December 2020 |
| Published date | 13 January 2021 |
| Hearing Date | 27 November 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | PA/10448/2017 |
Appeal Number: PA/10448/2017
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/10448/2017
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 27 November 2020 |
On 22 December 2020 |
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Before
UPPER TRIBUNAL JUDGE NORTON-TAYLOR
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
Richard [K]
(ANONYMITY DIRECTION NOT MADE)
Respondent
Representation:
For the Appellant: Ms S Cunha, Senior Home Office Presenting Officer
For the Respondent: Ms S Iengar, Counsel, instructed by Duncan Lewis and Co
DECISION AND REASONS
Introduction
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For ease of reference, I shall refer to the parties as they were before the First-tier Tribunal: the Secretary of State is once more the Respondent and Mr [K] is the Appellant. This is an appeal by the Respondent, with permission, against the decision of Designated First-tier Tribunal Judge Shaerf (“the judge”), promulgated on 31 December 2019, by which he allowed the Appellant’s appeal against the Respondent’s refusal of his protection and human rights claims, made in the context of deportation proceedings.
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The Appellant is a citizen of Trinidad and Tobago, born in March 1978. He arrived in the United Kingdom in 2002. He then left voluntarily in February 2005 and returned to this country in June of that year with entry clearance as a visitor. He has been in this country unlawfully since the expiry of that very limited leave. He had had a number of children, some of whom reside in the United Kingdom.
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On 11 April 2014, the Appellant and two co-defendants were convicted of robbery of a bookmakers (the co-defendants were convicted on two additional counts of robbery relating to other businesses). A month later they were sentenced to two and half years’ imprisonment. The Appellant and his co-defendants sought permission to appeal their convictions to the Court of Appeal. This had the additional consequence of the Attorney General making a reference to the Court on the ground that the sentences were unduly lenient and should be increased. In a judgment handed down on 3 October 2014, the Court of Appeal refused the Appellant and his co-defendants leave to appeal against the conviction and increased their sentences to five years ([2014] EWCA Crim 1918).
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Deportation action was subsequently instigated by the Respondent and the Appellant responded to this by making protection and human rights claims. In respect of the former, he asserted that his life would be in danger if deported to Trinidad and Tobago due to familial connections with drugs gangs in that country. As regards Article 8, he stated that he had private and family life in this country, with particular reference to a number of his children here and a partner, Ms Lewis.
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These claims were refused by a decision dated 3 October 2017. In respect of the protection claim, the Respondent issued a certificate under section 72 of the Nationality, Immigration and Asylum Act 2002, as amended (“the 2002 Act”), which, if upheld on appeal, excluded the Appellant from the protection of the Refugee Convention. He was also to be excluded from Humanitarian Protection. The protection claim was then refused on its merits. Article 8 was then considered and it was concluded that he should not be granted leave to remain on the basis of any protected rights.
The decision of the First-tier Tribunal
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The appeal came before the judge on 19 November 2019. Evidence was adduced relating to the protection and human rights claims. The judge made the following core findings:
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The Appellant could not satisfy Exception 1 or Exception 2 under section 117C(4) and (5) of the, as amended. Indeed, the judge found that there was no genuine and subsisting parental relationship with the relevant children in this country (paragraph 50);
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That taking account of the relatively brief nature of his relationship with Ms Lewis and her children from a previous relationship, the Appellant’s deportation would not have an unduly harsh impact on them (paragraph 51);
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That, in the context of the private and family life considerations already referred to, there were no very compelling circumstances over and above the two exceptions, with reference to section 117C(6) of the 2002 Act (paragraph 51);
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That the certificate issued under section 72 of the 2002 Act should be upheld because the Appellant had failed to rebut the two statutory presumptions contained therein. As a result, the Appellant was excluded from the protection of the Refugee Convention (paragraph 54);
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That the Appellant had made an application to the Criminal Cases Review Commission (“the CCRC”) at some unknown date and that this was still pending (paragraph 58);
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That it would be “disproportionate” to deport the Appellant “and that he should be able to remain in the United Kingdom for a reasonable period of time so that the CCRC might make a finding on his application” (paragraph 58);
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That in light of the previous conclusion, the judge declined to reach any findings on the Article 3 aspect of the protection claim (paragraph 60);
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Under the sub-heading of “notice of decision” that: “The appeal is allowed to the limited extent identified in paragraph 58 above.”
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In its entirety, paragraph 58 reads as follows:
“Given the length of time the Appellant has been in the United Kingdom, albeit unlawfully, the long history between himself and Ms Lewis, and the basis on which the Appellant has applied to the CCRC, I find it would be disproportionate at this stage to deport the Appellant and that he should be permitted to remain in the United Kingdom for a reasonable period of time so that the CCRC the might make a finding on his application. I was informed that an application has been made but not when it had been made. According to the CCRC the the average time taken to deal with applications in 2017 was about 70 weeks.””
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Paragraph 59 goes on to state:
“I have come to this conclusion after taking into account the public interest in the deportation of foreign criminals and the gravity, including the violent elements, of the offence for which the Appellant has been convicted as well as the length of his sentence. If the conviction were to be set aside, the Appellant’s claim for leave to remain in the United Kingdom would be put on an entirely different footing. I note the lack of evidence of any offending or violent behaviour in the period since his release on 11 November 2016 and conclude that permitting the Appellant to remain for a further short period of time would not be disproportionate to any of the legitimate public objectives identified in Article 8(2) of the European Convention or Part VA of the 2002 Act: see MS (Ivory Coast) v SSHD [2007] EWCA Civ 133.”
The grounds of appeal and grant of permission
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The Respondent’s grounds essentially make three points: first, that the judge should not have accepted that the Appellant had in fact made an application to the CCRC; second, that the judge had “no jurisdiction” to allow the appeal to a limited extent, as he had purported to do; third, that his conclusion that the appeal should be allowed on the basis set out was perverse.
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Permission to appeal was granted by Designated First-tier Tribunal Judge Macdonald on 21 January 2020.
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In advance of the hearing, Ms Iengar served a rule 24 response.
The hearing
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At the outset of the hearing, I informed the parties that I was aware of guidance issued by the CCRC to applicants and legal representatives. In respect of the former, I referred to a document entitled “Questions and Answers”, consisting of 10 pages. In respect of the latter, reference was made to a document entitled “Criminal Cases Review Commission Guidance for Legal Representatives.
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At the hearing before me Ms Cunha relied on the first point raised in the grounds of appeal, submitting that it was “bewildering” of the judge to have accepted the Appellant’s evidence on the CCRC application at face value. She accepted that the assertion in the grounds that the judge had “no jurisdiction” to have allowed the appeal as he did was misconceived. He had purportedly allowed it on Article 8 grounds and it was the rationality of this, rather than any jurisdictional issue, which was put forward as the main thrust of the Respondent’s challenge.
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In respect of the perversity challenge, Ms Cunha emphasised the very high threshold under section 117C(6) of the 2002 Act. She made reference to the importance of the public interest and the increased sentence imposed by the Court of Appeal. In short, she submitted that the conclusions set out in paragraph 58 did not constitute a rational basis for the judge’s ultimate decision to allow the appeal.
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Ms Iengar submitted that the judge had been entitled to have accepted the Appellant’s evidence on the making of the CCRC application. On the rationality issue, the judge had directed himself properly in law and had taken all relevant matters into account. What he said...
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