Upper Tribunal (Immigration and asylum chamber), 2021-03-03, RP/00086/2019
| Jurisdiction | UK Non-devolved |
| Date | 03 March 2021 |
| Published date | 18 March 2021 |
| Hearing Date | 18 November 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | RP/00086/2019 |
Appeal Number: HU/19510/2019
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: RP/00086/2019
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 18 November 2020 |
On 3 March 2021 |
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Before
UPPER TRIBUNAL JUDGE NORTON-TAYLOR
DEPUTY UPPER TRIBUNAL JUDGE JOLLIFFE
Between
M a m
(ANONYMITY DIRECTION made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the appellant or members of his family. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.
Representation:
For the Appellant: Ms A Childs, Counsel, instructed by Duncan Lewis Solicitors
For the Respondent: Mr T Lindsay, Senior Home Office Presenting Officer
DECISION AND REASONS
Introduction and procedural history
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The Appellant is a Sudanese national, born on 1 July 1987. He is a non-Arab Darfuri, and is a member of the Berti tribe. He entered the United Kingdom on 28 July 2015 and applied for asylum on 29 July 2015. On 11 November 2015, he was granted refugee status and leave to remain until 10 November 2020.
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On 28 August 2017, the Appellant committed two sexual offences. While drunk and under the influence of the drug Spice, he attacked two different lone women in west London within a short period of time and made unwanted and forceful sexual advances on them. The first woman was able to fight him off and run away. The second woman screamed and managed to fight him off, and he was apprehended by passers-by. On 10 November 2017, following his guilty plea to these offences, he was sentenced to 2 years’ imprisonment for each offence to run consecutively, coming to 4 years in total.
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On 22 May 2019 the Secretary of State wrote to inform him of her intention to revoke the grant of his refugee status under section 72 of the Nationality, Immigration and Asylum Act 2002 (hereafter, “section 72”) and Article 33(2) of the Refugee Convention (hereafter, “Article 33(2)”), and inviting him to submit any representations that he wished to make. The letter noted at paragraph 12 that due to the potential risk to him on return to Sudan, there was no intention to deport him at the present time. On 1 August 2019, the UN High Commission for Refugees made representations to the Secretary of State concerning the proposed revocation of his refugee status.
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On 6 August 2019, the Secretary of State took a decision to revoke his refugee status. The decision stated in paragraph 2 that the Appellant had not made any representations against the proposed revocation. It set out the Appellant’s history and the relevant legal framework for decisions to revoke refugee status. The remarks of the judge who sentenced the Appellant showed that the effects of his attacks were considerable, and they had serious consequences for the victims of the attacks.
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The Appellant appealed that decision. On 5 November 2019 First Tier Tribunal Judge Baldwin heard his appeal, and by a decision promulgated on 11 November 2019 he dismissed it. He also made an Anonymity Direction. As a preliminary issue he considered the Appellant’s application for an adjournment because the OASys (Offender Assessment System) report indicated that the Appellant was vulnerable, and further evidence about that was required. The Presenting Officer opposed the application, and Judge Baldwin refused it on the basis that the Appellant and his solicitors had had enough time to assemble the evidence, and that it was fair and just to proceed.
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The Appellant appealed that judgment to the Upper Tribunal. By a decision promulgated on 24 February 2020, Upper Tribunal Judges Kopieczek and Norton-Taylor allowed the appeal on the basis that Judge Baldwin erred in law by refusing the application for an adjournment. An expert report could have addressed both parts of section 72(2), and could have made a difference to the outcome of the appeal. The factual findings of Judge Baldwin would not be preserved. The error of law decision is appended to this decision.
Legal framework
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So far as relevant, section 72 NIAA 2002 states as follows:
72 Serious criminal
(1) This section applies for the purpose of the construction and application of Article 33(2) of the Refugee Convention (exclusion from protection).
(2) A person shall be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of the United Kingdom if he is—
(a) convicted in the United Kingdom of an offence, and
(b) sentenced to a period of imprisonment of at least two years.
…
(6) A presumption under subsection (2), (3) or (4) that a person constitutes a danger to the community is rebuttable by that person.
…
(9) Subsection (10) applies where—
(a) a person appeals under section 82 of this Act or under section 2 of the Special Immigration Appeals Commission Act 1997 (c. 68) wholly or partly on the ground mentioned in section 84(1)(a) or (3)(a) of this Act (breach of the United Kingdom's obligations under the Refugee Convention), and]
(b) the Secretary of State issues a certificate that presumptions under subsection (2), (3) or (4) apply to the person (subject to rebuttal).
(10) The Tribunal or Commission hearing the appeal—
(a) must begin substantive deliberation on the appeal by considering the certificate, and
(b) if in agreement that presumptions under subsection (2), (3) or (4) apply (having given the appellant an opportunity for rebuttal) must dismiss the appeal in so far as it relies on the ground specified in subsection (9)(a).
(10A) Subsection (10) also applies in relation to the Upper Tribunal when it acts under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.]
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Paragraph 339D of the Immigration Rules concerns the exclusion of a person from humanitarian protection:
(i) there are serious reasons for considering that they have committed a crime against peace, a war crime, a crime against humanity, or any other serious crime or instigated or otherwise participated in such crimes;
(ii) there are serious reasons for considering that they have guilty of acts contrary to the purposes and principles of the United Nations or have committed, prepared or instigated such acts or encouraged or induced others to commit, prepare or instigate such acts;
(iii) there are serious reasons for considering that they constitute a danger to the community or to the security of the United Kingdom; or
(iv) there are serious reasons for considering that they have committed a serious crime; or
(v) prior to their admission to the United Kingdom the person committed a crime outside the scope of (i) and (iv) that would be punishable by imprisonment were it committed in the United Kingdom and the person left their country of origin solely in order to avoid sanctions resulting from the crime.
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The Court of Appeal considered section 72 and Article 33(2) in EN (Serbia) v SSHD [2009] EWCA Civ 630. It held that Article 33(2) imposed two requirements for deportation of a refugee, namely conviction for a particularly serious crime and constituting a danger to the community, and it did not expressly require a causal connection between the two. The term "particularly serious crime" in an international treaty had an autonomous meaning and did not necessarily mean the same in each Member State, as criminal laws varied between countries. The term should apply to what was criminal under domestic law when deportation was considered. Not every crime for which the criminal is sentenced to 2 years’ imprisonment will be “particularly serious” within the meaning of section 72 – see EN at [69]. At [66], the Court held that
“Once the State has established that a person has been convicted of what is on the face of it a particularly serious crime, it will be for him to show either that it was not in fact particularly serious, because of mitigating factors associated with its commission, or that because there is no danger of its repetition he does not constitute a danger to the community.”
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Section 72 was considered in IH (s.72; 'Particularly Serious Crime') Eritrea [2009] UKAIT 00012. At paragraph 74, the Tribunal held that:
“Thus, the forensic investigation of...
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