Upper Tribunal (Immigration and asylum chamber), 2021-03-08, RP/00171/2018
| Jurisdiction | UK Non-devolved |
| Date | 08 March 2021 |
| Published date | 22 March 2021 |
| Hearing Date | 25 January 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | RP/00171/2018 |
Appeal Number: RP/00171/2018(V)
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: RP/00171/2018 (V)
THE IMMIGRATION ACTS
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Heard at Field House (by remote video means) |
Decision & Reasons Promulgated |
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On 25th January 2021 |
On 8th March 2021 |
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Before
UPPER TRIBUNAL JUDGE JACKSON
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
And
AAS
(ANONYMITY DIRECTION MADe)
Respondent
Representation:
For the Appellant: Mr T Lindsay, Senior Home Office Presenting Officer
For the Respondent: Unrepresented
DECISION AND REASONS
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This has been a remote hearing which has not been objected to by the parties. The form of remote hearing was by video, using Skype. A face to face hearing was not held to take precautions against the spread of Covid-19 and as all issues could be determined by remote means. The file contained the documents in paper format.
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The Secretary of State appealed against a decision of First-tier Tribunal Judge Anthony, who allowed an appeal by AAS against the decision to revoke his protection status and to refuse his protection and human rights claim dated 11 September 2018. For ease I continue to refer to the parties as they were before the First-tier Tribunal, with AAS as the Appellant and the Secretary of State as the Respondent.
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An error of law was found by Upper Tribunal Judge Grubb in a decision dated 24 June 2020 and the decision of the First-tier Tribunal was set aside to be re-made in the Upper Tribunal, with no specific preserved findings of fact.
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The further hearing for re-making of this appeal was originally listed for 20 October 2020, but converted to a case management hearing the day before following an indication from the Appellant’s then solicitors that despite numerous attempts by different means, they had not had any response or instructions from the Appellant for some time. At the case management hearing, the Appellant’s then solicitors indicated that they had had a telephone call the afternoon before the hearing (after the conversion to a CMR) from which it was clear that the Appellant knew of the listing but he had lost his phone and did not leave any further contact details in the alternative for them to return the call.
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I issued directions on 20 October 2020 for this hearing to be relisted for a remote video hearing and for the parties to provide contact details for a Skype hearing within 14 days. In addition, (i) that by 10 November 2020 the Appellant was to make contact with his solicitors and/or the Upper Tribunal to confirm that he wished to proceed with his appeal; (ii) any further evidence to be relied upon to be filed and served no later than 14 days before the hearing; (iii) the Appellant to file and serve a composite bundle for the hearing; and (iv) the parties to file and serve a skeleton argument no later than 7 days before the hearing.
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The directions included a warning to the Appellant that if he failed to make contact with his then solicitors or the Upper Tribunal or failed to comply with the directions for the hearing; no further adjournment of the appeal was likely and his appeal may be determined without a further hearing under rule 34 of the Tribunal Procedure (Upper Tribunal) Rules 2008 or a further hearing may proceed in his absence under rule 38 of the same. These directions were sent directly to the Appellant and his then solicitors. A notice of hearing followed on 23 December 2020, again sent directly to the Appellant as well as his solicitors.
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On 22 January 2021, the Appellant’s then solicitors applied for an adjournment of the hearing on the basis that they remained without instructions and had not had any further contact with the Appellant since the day before the case management hearing. The application was refused on the same date by Mr Hussain in the Upper Tribunal. The Appellant’s then solicitors subsequently came off the record and are no longer representing the Appellant.
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As at the start of the hearing on 25 January 2021, the Upper Tribunal had not had any contact at all from the Appellant, either in relation to the hearing or in the form of any further evidence or the composite bundle required. The directions and listing notice were sent directly to the Appellant (as well as his then solicitors who have made efforts to contact him) and to the same address as the previous listing notice which we know the Appellant had received from his very limited contact with his then solicitors on 19 October 2020 when he indicated he was aware of the listing for 20 October 2020.
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I am satisfied that the Appellant has been served with the directions and notice of listing, as well as having been contacted by his then solicitors in relation to the hearing and the warnings contained therein about the likelihood of it proceeding if he failed to comply with directions in relation to it. The Appellant has failed to make any substantive contact with his solicitors in relation to this appeal for a significant period of time (including prior to the hearing listed in October 2020) and has failed to make any contact at all with the Upper Tribunal. Whilst it is understood that in the past the Appellant has had some mental health problems (with limited medical evidence of this for the period around 2016 to 2018 and only references to depression and anxiety predating this period), there is no up to date medical evidence (or any evidence at all) of any current difficulties or indication that the Appellant’s failure to engage with his appeal is due to this; nor that there has been any specific adverse impact of the Covid-19 pandemic on the Appellant in relation to his engagement with his own appeal. There is little before the Upper Tribunal to indicate that the Appellant wishes to pursue this appeal at all and no indication if he does, as to why he has not engaged to date with the directions or listing or as to when he may be able to do so.
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In all of the circumstances, particularly without any information as to when this appeal could proceed with the Appellant’s involvement, if at all, it is not in the interests of justice to delay the hearing of this appeal any longer by adjourning it. The hearing proceeded substantively on 25 January 2021 on the basis of the evidence that had previously been submitted by the Appellant to the First-tier Tribunal and submissions made on his behalf to date and with oral submissions on behalf of the Respondent. I have taken into account when assessing the evidence that the Appellant did not appear before me to give oral evidence, such that his evidence was not tested; however, that does not significantly reduce the weight to be given to his evidence for two main reasons. First, the Appellant did attend the hearing before the First-tier Tribunal on which occasion he gave evidence and was cross-examined. Secondly, the factual background is largely undisputed (save as where indicated in submissions on behalf of the Respondent set out below). Further, although there were no formal preserved findings of fact from the First-tier Tribunal, the decision contains findings which are uncontroversial as to the Appellant’s background and circumstances and which I adopt in this decision.
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The issues in this appeal are as to (i) the Respondent’s revocation of the Appellant’s refugee status; (ii) humanitarian protection (albeit not expressly raised by the Appellant); (iii) Article 3 of the European Convention on Human Rights; and (iv) Article 8 of the European Convention on Human Rights/private and family life exceptions to deportation.
Immigration Law and Rules Relevant to the Appellant
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In accordance with section 3(5) of the Immigration Act 1971, a person who is not a British citizen is liable to deportation if the Secretary of State deems it to be conducive to the public good. For the purposes of this appeal, this includes cases in which a person is considered to be a persistent offender.
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The Upper Tribunal considered the meaning of “persistent offender” in Chege (“is a persistent offender”) [2016] UKUT 187 (IAC), which was endorsed by the Supreme Court in SC (Zimbabwe) v Secretary of State for the Home Department [2018] 1 WLR 4474. The Upper Tribunal found as follows:
“50. What, therefore, is the natural meaning of the phrase "persistent offender" in this specific statutory context? It can certainly be said, without unnecessarily straining the natural meaning of the word that an "offender" acquires that status by virtue of committing a crime, and having once offended he does not lose that status even if he never commits another crime. In other words, once an offender, always an offender. The fact that Parliament has deliberately legislated to remove the concept of spent convictions in this context also lends force to the view that "offender" means someone who has offended in the past however long ago that may have been.
51. However, Parliament did not use the phrase "repeat offender" or "serial offender". It used the phrase "persistent offender", and persistence, by its very nature, requires some continuation of the behaviour concerned, although it need not be...
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