Upper Tribunal (Immigration and asylum chamber), 2021-01-05, PA/01045/2019
| Jurisdiction | UK Non-devolved |
| Date | 05 January 2021 |
| Published date | 19 January 2021 |
| Hearing Date | 27 November 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | PA/01045/2019 |
Appeal Number: PA/01045/2019
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01045/2019
THE IMMIGRATION ACTS
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Heard at Bradford IAC |
Decision & Reasons Promulgated |
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On 27 November 2020 |
On 05 January 2021 |
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Before
UPPER TRIBUNAL JUDGE REEDS
Between
AK
(ANONYMITY DIRECTION made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms Bartlam, Counsel instructed on behalf of the Appellant
For the Respondent: Mr Diwncyz, Senior Presenting Officer
DECISION AND REASONS
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The Appellant is a citizen of Afghanistan.
Anonymity
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Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
Anonymity was granted at an earlier stage of the proceedings because the case involves protection issues. I find that it is appropriate to continue the order. 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. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.
The background:
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On 16 June 2009, the appellant was arrested by the police after he claimed that he had entered the UK clandestinely by lorry. He claimed to be a minor but was assessed by the local authority as being an adult and therefore over 18.
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On 17 June 2009, he claimed asylum and on the same day a screening interview was conducted. He claimed to have left Pakistan in August 2008 travelling to Iran, Greece, Italy, and France before arriving in the UK. According to the EURODAC fingerprint base, the appellant had been fingerprinted in Greece on 13 October 2008 as an illegal entrant. Requests were made to the Greek authorities inviting them to take responsibility for his asylum claim under the terms of the Dublin II regulation however his removal to Greece was cancelled as he submitted a human rights application.
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On 15 October 2009 he was granted temporary release with weekly reporting conditions. Whilst it was stated the asylum claim would be considered in the United Kingdom and not Greece, the asylum claim was not proceeded with and was withdrawn on 7 February 2013 as the appellant had absconded.
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Nothing more was heard from the appellant until 2 August 2015 when information was received from the police stating that he had been arrested for failing to stop, having no insurance, no driving licence and common assault.
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On 29 September 2015 he was encountered outside the police station and he was arrested for being an absconder and on 2 October 2015 was informed that he was a person liable to be detained.
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On 1 February 2016, the magistrates court is convicted and sentenced to 7 days imprisonment for two counts of driving offences and failing to surrender to custody.
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On 7 February 2016 he notified the Home Office that he wanted to submit a fresh asylum claim and on 16 February 2016 screening interview was conducted.
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On 4 April 2016 he was released again on reporting conditions.
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On 8 August 2016 he signed a voluntary departure disclaimer and signed a facilitator returns form indicating he wished to return to Afghanistan.
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On 9 August 2016 in the Crown Court he was convicted and sentenced to 76 months imprisonment for wounding with intent to do grievous bodily harm and having a bladed article which was a sharply pointed knife in a public place.
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On 24 January 2017 he signed a form indicating he wished to be included in the early removal scheme, that he wanted to leave the UK and return to Afghanistan Kabul airport. He confirmed he did not intend to appeal any decision for his removal, and he confirmed that he understood that if he returned to the UK before his sentence expired he would be returned to prison to serve the remainder of his sentence.
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By March 2017 on induction at the prison he told officials he did not know if he wanted to return to Afghanistan however on 2 May 2017 he asked for a form to sign in order to return to Afghanistan.
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On 11 July 2017, the appellant was sent a decision pursuant to the immigration act 1971 and the UK Borders Act 2017.
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Whilst the appellant replied to this letter on 26 July 2017, on 23 August 2017 he completed a form stating it wish to apply for facilitated return scheme and to leave the UK to travel to Kabul in Afghanistan.
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On 27 November 2017 he informed them that he did not wish to return and was advised to put that in writing as to what his intentions were.
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On 6 December 2017 he informed the prison that he was still unsure but on 19 January 2018 told the prison officials he definitely wanted to be deported and wished to be returned straight away.
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On 14th February 2018 he was sent to disclaimer but then told an immigration officer who did not wish to be deported.
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It is recorded that the appellant spoke to his brother who told him it was not safe.
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A further screening interview was conducted on 16th February 2018 and on 22 March 2018 and asylum interview.
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On 20 and 21 June 2018 he again informed the prison officials that he wanted to be deported to Afghanistan. On 8 July 2018 he informed the prison that he did not wish to be deported and that he explained the reasons for changing his mind about whether he wished to return was due to mental health problems.
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On 27 July 2018, the appellant informed prison officials that he wanted to claim asylum as he feared his wife’s relatives.
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On 2 November 2018 he was sent to section 72 letter asking him to rebut the presumption that the crime he committed was a particularly serious one and that he was a danger to the community. A reply was received on 9 November 2018.
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On 23 January 2019, the respondent issued a decision to refuse a protection human rights claim in the context of his deportation.
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The respondent sought the appellant’s deportation as a result of his conviction on 9 August 2016 where he was sentenced to 6 years and four months imprisonment for wounding with intent to do grievous bodily harm and having a bladed article (a knife) in a public place.
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The sentencing remarks of the trial judge are set out at paragraph [67] of the decision letter.
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The decision letter at paragraphs 48 – 72 set out the respondent’s reasons for reaching the conclusion that section 72 of the Nationality, Immigration and Asylum Act 2002 applied.
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Consideration was given to his protection claim in the context of the country materials and the country guidance decision of AK (Article 15(c)) Afghanistan CG [2012] UKUT 0163. It was considered that whilst the security situation in Afghanistan remained volatile, with especially high levels of violence recorded in Helmand (which is where the appellant stated he had lived before coming to the UK) the appellant could return to Kabul were the levels of violence are lower than in Helmand.
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At paragraphs 83 – 92 the respondent set out the credibility issues identified within his claim.
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The light of the country guidance decision and the objective material, the respondent considered that it would not be unduly harsh for the appellant to internally relocate to Kabul.
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The decision at paragraphs 108 – 113 set out the reasons for excluding the appellant from humanitarian protection on the basis of his conviction and imprisonment under paragraph 339D (iii) of the immigration rules.
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At paragraphs 114 – 124 the respondent addressed Article 3 based on medical grounds.
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It was noted that in the asylum interview undertaken on 22 March 2018 he claimed to suffer from mental health issues although no evidence had been provided to support the claim.
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The respondent considered the objective material relating to psychiatric treatment Afghanistan dated 6 April 2017 and that treatment was available. The respondent set out the legal authorities including that of N v SSHD [2005] UKHL 31
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In a determination promulgated on the 30 October 2019, FtTJ Tully allowed his claim and concluded that his illness had not reached any critical strange, whilst he had been in the UK since June 2009 it was not sufficient to demonstrate the UK ,was bound by any duty of care and that article 3 did not give a right to remain in the UK to continue to receive medical treatment. It was noted that there was no indication that a treatment currently received was unavailable in Afghanistan.
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At paragraphs 125 – 129 the respondent considered article 8 noting that the bases his claims that he lived in the UK for 10 years and established a strong private life. However, no evidence had been provided in support of his article 8 claim. It was concluded that there were no very compelling circumstances in his case and that there was a significant public interest in deporting him.
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It is recorded in the documents that the appellant completed his 38 months in prison sentence in May 2019.
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The appellant appealed the decision, and it came before First-tier Tribunal Judge Tully on 15 October 2019.
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In a decision promulgated on 30 October the FtTJ concluded that the conviction was “not of a particularly serious nature”...
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