Upper Tribunal (Immigration and asylum chamber), 2021-06-21, DA/00395/2019
| Jurisdiction | UK Non-devolved |
| Date | 21 June 2021 |
| Published date | 07 July 2021 |
| Hearing Date | 25 May 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | DA/00395/2019 |
Appeal Number: DA/00395/2019
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Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: DA/00395/2019 |
THE IMMIGRATION ACTS
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Heard at Field House (via Teams) |
Decision & Reasons Promulgated |
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On the 25th May 2021 |
On the 21st June 2021 |
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Before
UPPER TRIBUNAL JUDGE BLUNDELL
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
SADIK HUSAN hALANI
(NO ANONYMITY DIRECTION MADE)
Respondent
Representation:
For the Appellant: Ms R Petterson, Senior Presenting Officer
For the Respondent: Mr A Mian, instructed by Mondair Solicitors
DECISION AND REASONS
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The Secretary of State for the Home Department appeals, with permission granted by Upper Tribunal Judge Pitt, against First-tier Tribunal Judge J W H Law’s decision to allow Mr Halani’s appeal on human rights grounds. To avoid confusion, I shall refer to the parties as they were before the FtT: Mr Halani as the appellant, the Secretary of State as the respondent.
Background
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The appellant is a French national who was born on 3 May 1966. He seemingly arrived in the United Kingdom in the late 1980’s. He first came to the attention of the British authorities on 14 April 1994, due to a series of offences involving his ex-wife.
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On 14 April 1994, the appellant threatened to kill his ex-wife. Later that day, he reversed his car into a car driven by his ex-wife, causing injuries to her and her daughter. He was arrested and granted bail. Five days later, he made further threats to kill and was re-arrested and remanded in custody. On 25 July 1994, he was released on bail to a hostel in Lincoln. Eleven days later, he took a knife from the bail hostel and travelled from Lincoln to Peterborough where he attempted to murder his ex-wife by stabbing her repeatedly in what was subsequently described by the sentencing judge as a planned and pre-meditated attempt to kill her. She only survived the attack due to the fact that she received prompt and expert medical attention. She was in intensive care for two days, during which she lost her spleen and her pancreas. She suffered lasting physical and mental consequences.
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The appellant fled the country shortly after he had attacked his ex-wife. He lived in Madagascar, where he remarried. He and his current wife have four children, two born in France and two born in the UK.
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The appellant attempted to return to the UK in 2007 but he was detected at the juxtaposed control in Coquelles. He was arrested for the offences described above and he denied involvement, maintaining his innocence until the day of his trial before the Crown Court at Cambridge. On 18 January 2008, he was sentenced by HHJ Haworth to a total of nine years’ imprisonment. In sentencing the appellant, HHJ Haworth noted that he had a limited appreciation of the impact of his offence and he endorsed the conclusions of a psychiatrist, Dr Smith, that he presented a continuing risk, at that time, of similar offending in the future, in the context of the failure of an intimate relationship. The judge made these remarks as he was ‘quite certain’ that the Parole Board would wish to see his remarks in due course.
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The appellant completed his custodial sentence in August 2012. On 10 August 2012, the Parole Board noted that the extant OASys assessment was that the appellant posed ‘a medium risk of harm to the public and to children with a high risk of harm to a known adult and low risk of violent re-offending’.
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The appellant was released from immigration detention later that month. He had been served with a notice of intention to deport and he appealed to the First-tier Tribunal against that decision. His appeal was dismissed by a panel of the FtT comprising Judge A W Khan and Mrs R M Bray JP on 9 January 2013. The FtT found, notwithstanding the passage of time since the offence, that it was ‘undoubtedly true to say that the appellant remains at moderate to high risk of reconviction for a violent offence within an intimate relationship’: [26]. Permission to appeal against that decision was refused and the appellant became appeal rights exhausted on 6 February 2013.
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On 1 April 2013, the appellant was deported to France.
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Six months later, on 16 October 2013, the appellant arrived in the UK in breach of the deportation order, having travelled to this country via ferry from Ireland. He was returned to Ireland by ferry the following day.
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Two years later, on 17 June 2015, the appellant attempted to re-enter the UK for a second time. He was encountered by Immigration Officers on a ferry from Belfast. After his arrival in the United Kingdom, representations were made on the appellant’s behalf for him to remain in the UK. Those submissions were refused without a right of appeal and the appellant was returned to France on 28 September 2015.
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On 12 December 2017, an application was made to revoke the appellant’s deportation order. The letter in which that application was made spans eleven pages of single-spaced type but it was submitted, in summary, that the appellant no longer presented a risk and that his continued exclusion was unjustifiably to the detriment of his relationship with his family, all of whom were settled in the UK and could not relocate to either France or Madagascar.
The Respondent’s Decision
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On 8 July 2019, the respondent refused to revoke the deportation order. She directed herself in accordance with regulation 34(5) of the Immigration (EEA) Regulations 2016 and considered whether the criteria for making the order were no longer satisfied. She did not consider regulation 34(5) to be satisfied. In reaching that conclusion, the respondent noted the assessments made by the various professionals and by HHJ Haworth about the risk posed by the appellant and the absence of evidence from a suitably qualified individual to show that the appellant had addressed the underlying issues: [42]-[54]. The respondent also took account of the FtT’s conclusions in 2013: [56]-[57]. At [61]-[62], the respondent considered submissions made by the appellant’s representatives about his conduct post-deportation:
[61] In addition to the above you have stated that “Our client had no further convictions and abides by the law”. It is accepted that your client had received no further criminal convictions since his deportation. However it is not accepted that he had abided by the law completely in that time as he has on two separate occasions on 16 October 2013 and 17 June 2015 attempted to enter the United Kingdom unlawfully despite him being fully aware of the fact that he is the subject of a signed Deportation Order. This clearly demonstrates that your client is willing to circumvent the immigration rules of the United Kingdom and the law of the country by attempting to enter with no right to do so.
[62] In addition to this, the Secretary of State takes a particularly serious view of serious criminals such as your client attempting to evade the authorities by entering the United Kingdom with no right to do so and without the knowledge of the authorities. This is because had he entered the United Kingdom with no right to do so without the authorities being aware of his presence in the United Kingdom, then no measures would have been put into place to minimise the risk that he poses to the public and in particular his ex-partner.
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The respondent concluded that there had not been a material change of circumstances and, at [65]-[76] of her decision, she concluded that the appellant’s continued exclusion from the UK was a proportionate course under the EEA Regulations.
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At [77]-[141], the respondent considered Article 8 ECHR. She reasoned that there was a significant public interest in the maintenance of the deportation order: [87]. Whilst it was accepted that the appellant was maintaining a limited form of family life with his family in the United Kingdom, via visits to third countries and using the telephone and internet, she did not consider it to be established that Social Services would permit the appellant to return to the family home in the event that he was permitted to re-enter the United Kingdom: [102]-[109]. The respondent noted that the FtT had previously concluded that the appellant’s wife and children could relocate to France or Madagascar and did not consider there to be any reason to take a different view: [110]-[124]. There was no evidence to show that the appellant’s mother suffered from any medical conditions and no evidence to show that his absence was causing any emotional suffering: [125]-[130]. The entire family could relocate to either Madagascar or France and there were no exceptional circumstances which outweighed the public...
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