Upper Tribunal (Immigration and asylum chamber), 2021-08-16, [2021] UKUT 236 (IAC) (Kakarash (revocation of HP, respondent’s policy))
| Jurisdiction | UK Non-devolved |
| Judge | MR C M G OCKELTON, VICE PRESIDENT, UPPER TRIBUNAL JUDGE BLUNDELL |
| Status | Reported |
| Date | 16 August 2021 |
| Published date | 16 September 2021 |
| Hearing Date | 17 June 2021 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | revocation of HP, respondent’s policy |
| Appeal Number | [2021] UKUT 236 (IAC) |
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Upper Tribunal (Immigration and Asylum Chamber) |
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Kakarash (revocation of HP; respondent’s policy) [2021] UKUT 00236 (IAC) |
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THE IMMIGRATION ACTS
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Heard at Field House (via Teams) |
Decision & Reasons Promulgated |
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On 17 June 2021 |
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………………………………… |
Before
MR C M G OCKELTON, VICE PRESIDENT
UPPER TRIBUNAL JUDGE BLUNDELL
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
REKAN SHWAN KAKARASH
(ANONYMITY DIRECTION NOT MADE)
Respondent
Representation:
For the Appellant: Mr P Deller, Senior Presenting Officer
For the Respondent: Ms A Radford, instructed by Turpin Miller LLP
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When a court or tribunal is considering whether the revocation of P’s protection status breaches the UK’s obligations in relation to persons eligible for a grant of Humanitarian Protection, the first question is whether P is eligible for a grant of Humanitarian Protection.
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P is not eligible for a grant of Humanitarian Protection if he is excluded from eligibility for any one of the reasons in paragraph 339GB(i)-(v) of the Immigration Rules (which transposed Article 17(1) of the Qualification Directive), including his commission of a serious crime or the fact that he constitutes a danger to the community or security of the UK.
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The Secretary of State’s guidance on Humanitarian Protection (version 5, 7 March 2017) does not disclose an intention to adopt standards more favourable to P as regards exclusion from Humanitarian Protection. In particular, that guidance does not require that, in order to be excluded from Humanitarian Protection, an individual who has committed a serious crime must also represent a danger to the UK.
DECISION AND REASONS
Introduction
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At 9 o’clock in the morning on 22 June 2018, there was an argument between two customers at a Subway sandwich shop in Peterborough. The argument began because one customer, Mr Kakarash, felt that he should not have to queue to buy a cookie. The other customer suggested that he should wait his turn. The argument escalated to the point that the other customer was headbutted and stabbed in the shoulder by Mr Kakarash.
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The Secretary of State took the view that this was a serious crime which justified the revocation of Mr Kakarash’s humanitarian protection. On appeal against that decision, the First-tier Tribunal accepted that the crime was a serious one which justified revocation under the Qualification Directive and the Immigration Rules but allowed the appeal nevertheless. This appeal concerns the correctness of that decision.
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To avoid confusion, we will refer to the parties as they were before the FtT: Mr Kakarash as the appellant, the Secretary of State as the respondent.
Background
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The appellant is an Iraqi national who was born on 18 April 1997. He entered the UK unlawfully, as an unaccompanied asylum-seeking child, and claimed asylum on 10 November 2014. He claimed to be a Kurd from a contested area which had been attacked by ISIS. The respondent accepted that he could not return to that area but concluded that he could safely and reasonably relocate to the Independent Kurdish Region.
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On appeal to the First-tier Tribunal, Judge John Jones QC noted that the appellant (who was, by that stage, an adult) did not rely on the Refugee Convention. The judge considered and rejected the points made by the respondent about the truthfulness of the appellant’s account. He accepted the core of that account, that the appellant ‘is an Iraqi Kurd who fled his village when it was attacked by ISIS and that it is not now safe for him to return to his home area’. The judge also accepted that the appellant’s father was killed in the attack and that the appellant had been unable to trace any of his other family members. Applying AA (Article 15(c) Iraq CG [2015] UKUT 544 (IAC), the judge found that the appellant could not return to his home area (of Gwer, near Erbil) and that his relocation to the IKR would be unduly harsh. So it was that the appeal was allowed on Humanitarian Protection and Article 3 ECHR grounds.
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Judge Jones QC’s decision was issued on 9 December 2015. There was an appeal to the Upper Tribunal and, although we have not seen the resulting decision, it is not in dispute that the decision of the FtT stood undisturbed. The appellant was granted Humanitarian Protection on 10 April 2016, valid until 9 April 2021.
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The stabbing occurred on 22 June 2018. The appellant was arrested at the scene. On 14 December 2018, at a Plea and Trial Preparation Hearing before the Crown Court at Cambridge, he pleaded guilty to two offences: unlawful wounding and having a bladed article in a public place. That plea was offered on a basis of excessive self-defence but that basis was ultimately abandoned by the appellant. On 31 January 2019, the appellant was sentenced by HHJ Bridge to a total of fifteen months’ imprisonment.
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The respondent wrote to the appellant on 16 February 2019, seeking any reasons why he should not be deported as a foreign criminal, as defined in the UK Borders Act 2007. She stated, amongst other things, that she would be considering whether to take any action in respect of the appellant’s Humanitarian Protection status. She invited him to make representations on that and other matters within 20 days, after which she would consider ‘whether you continue to qualify for protection status and, if not, whether you should be deported’.
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The appellant responded to the respondent’s letter on 10 April 2019. He had produced the response himself with the assistance of fellow prisoners. He stated that he was married to a British citizen and that he had a child. He had no problems related to substance abuse; the index offence was his first; and there was no prospect of its repetition. In all the circumstances, it would be disproportionate under Article 8 ECHR to deport the appellant. This letter was supported by evidence in support of the appellant’s private and family life in the UK.
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On 23 July 2019, the respondent wrote to the appellant at HMP Huntercombe. She refused his human rights claim and revoked his Humanitarian Protection. For reasons which will shortly become apparent, we need not mention the basis upon which the respondent reached the former conclusion. The latter conclusion was based on the respondent’s conclusions that the appellant had committed a serious crime or, alternatively, that he constituted a danger to the community. She cited paragraphs 339GB(iii) and (iv) of the Immigration Rules as applying to the appellant. The respondent also concluded, applying paragraph 339GA of the Immigration Rules, that the circumstances which led to the grant of humanitarian protection had ceased to exist or had changed to such a degree that such protection was no longer required.
The Appeal to the First-tier Tribunal
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The appellant appealed to the FtT on 2 August 2019. He had by this stage instructed his current solicitors and the IAFT-5 was prepared by them. Of the eight boxes which may be completed to indicate the grounds of appeal, three were completed. It was submitted in the first that removal of the appellant would be in breach of the Refugee Convention. In the second, it was submitted that the appellant’s removal to Iraq would expose him to inhuman and degrading treatment and he was said to be ‘eligible for humanitarian protection’. In the third, there was reference to Articles 3 and 8 ECHR and reliance on the appellant’s relationships with his partner and child in the UK. The fourth and fifth boxes – which invited submissions in relation to the decision to revoke the appellant’s protection status – were left blank.
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Before the appeal could be heard by the FtT, there were two further events of note. On 18 May 2020, the appellant was convicted of detaining a child without lawful authority and given a twelve-month conditional discharge by Cambridgeshire Magistrates’ Court. Secondly, on 8 June 2020, the respondent stated in writing that she had withdrawn the decision to deport the appellant. She nevertheless maintained the decision to revoke his humanitarian protection. She indicated her intention to grant the appellant twelve months’ discretionary leave to remain.
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The appeal came before a panel of the FtT comprising Judges Brannan and Singer on 8 October 2020. The appellant was represented by Ms Radford, the respondent by a Presenting Officer (not Mr Deller). Ms Radford had produced a skeleton argument, in which she argued only that the decision to revoke the appellant’s protection status breached the United Kingdom’s obligations in relation to...
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