Upper Tribunal (Immigration and asylum chamber), 2021-09-01, HU/05214/2020
| Jurisdiction | UK Non-devolved |
| Date | 01 September 2021 |
| Published date | 16 September 2021 |
| Hearing Date | 27 July 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/05214/2020 |
Appeal No. HU/05214/2020
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/05214/2020 (V)
THE IMMIGRATION ACTS
|
Heard at Field House via Teams |
Decision & Reasons Promulgated |
|
On 27 July 2021 |
On 01 September 2021 |
Before
UPPER TRIBUNAL JUDGE O’CALLAGHAN
Between
ERNEST KALU OBI
(ANONYMITY DIRECTION NOT MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr. N Uddin, Counsel, instructed by Nathan Aaron Solicitors
For the Respondent: Mr. T Lindsay, Senior Presenting Officer.
DECISION AND REASONS
Introduction
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This is an appeal against the decision of Judge of the First-tier Tribunal Ripley (‘the Judge’), sent to the parties on 3 December 2020, by which the appellant’s appeal against a decision of the respondent to refuse to allow him leave to remain in this country on human rights grounds and to maintain a deportation order was dismissed.
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Judge of the First-tier Tribunal Chohan granted the appellant permission to appeal to this Tribunal by a decision dated 8 January 2021.
Remote Hearing
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The hearing before me was a Teams video conference hearing held during the Covid-19 pandemic. I was present in a hearing room at Field House. The hearing room and the building were open to the public. The hearing and its start time were listed in the cause list. I was addressed by the representatives in the same way as if we were together in the hearing room. I am satisfied: that this constituted a hearing in open court; that the open justice principle has been secured; that no party has been prejudiced; and that, insofar as there has been any restriction on a right or interest, it is justified as necessary and proportionate.
Anonymity
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The Judge did not make an anonymity order and neither party requested an order before me.
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I note the recent observation of Elisabeth Laing LJ in Secretary of State for the Home Department v. Starkey [2021] EWCA Civ 421, at [97]-[98], made in the context of deportation proceedings concerned with sexual offences, that defendants in criminal proceedings are not usually anonymised. Both the First-tier Tribunal and this Tribunal are to be mindful of such fact. I am satisfied that the appellant in this matter has already been subject to the open justice principle in respect of his criminal conviction, which is a matter of public record and so considered to be known by the wider community. I find that the common law right permitting the public to know about Tribunal proceedings in this matter, a right further protected by article 10 ECHR, outweighs the appellant’s rights under article 8 ECHR. I do not make an anonymity order in this matter.
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The appellant has been convicted of a serious sexual offence. Whilst there is no requirement for the victim to be named in my decision, I take the opportunity to observe that consequent to section 1 of the Sexual Offences (Amendment) Act 1992 (‘the 1992 Act’) there is a prohibition upon the reporting of any matter which may lead to the identification of a complainant in respect of certain sexual offences, including sexual assault on a female by penetration contrary to section 2 of the Sexual Offences Act 2003: section 2(da) of the 1992 Act. Such anonymity is for life.
Background
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The appellant is a national of Nigeria and is presently aged 51. He entered the United Kingdom with leave to enter as a visitor in May 1999. A subsequent application for further leave to remain was refused by the respondent by means of a decision in March 2000. The appellant did not enjoy an attendant right of appeal.
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The appellant claimed asylum in March 2000, but the application was refused in July 2000 on non-compliance grounds. The respondent withdrew this decision in June 2001. The application was again refused in February 2004. The appellant’s appeal was dismissed on 1 March 2005.
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The appellant entered into a relationship with ‘JB’ and their child was born in December 2004. At the date of the Judge’s decision the child was a few days short of their 16th birthday.
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In the same month as his first child was born, the appellant commenced residing with his first wife, ‘VM’. An application for leave to remain based on his marriage was received by the respondent in February 2005. A subsequent application for indefinite leave to remain in this country was submitted in September 2005. The application was initially refused by the respondent in February 2006, but that decision was withdrawn in January 2007.
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Following the appellant’s convictions for failing to provide a specimen for analysis (x2), no insurance and driving otherwise than in accordance with a licence the respondent issued the appellant with a warning letter in 2009.
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On 28 July 2009 the respondent granted the appellant indefinite leave to remain in this country.
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The appellant married his present wife, ‘CO’, in Nigeria in 2013 and they have two children. CO and the children currently reside in Nigeria.
Previous convictions
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The appellant was convicted in relation to driving offences on four occasions between 2005 and 2014 in relation to: driving with excess alcohol (x1); failing to provide a specimen for analysis (x2); no insurance (x1); driving otherwise than in accordance with a licence (x1); and driving whilst disqualified (x1). For all offences he received non-custodial sentences and at his last court appearance in 2014 he was disqualified from driving for a period of 46 months.
Index Offence
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The index offence can be addressed briefly. The Crown’s case, as accepted by a jury, was that in 2010/11 the appellant returned to the victim’s family home with her mother. Both the appellant and the victim’s mother had been drinking. Over time, the appellant acted in a manner that concerned the victim, then aged around 14 or 15 years of age, such as sitting next to her when her mother left the room, holding her hands and stating that he wanted to take her to Nigeria and marry her. The appellant followed the victim upstairs to her bedroom and requested that he be allowed entry. The victim refused and blocked the door. When the appellant and the victim’s mother went to bed, the victim decided to stay downstairs for safety. She armed herself with a knife. The appellant came downstairs at around 2am and again requested that the victim become his wife. A sexual assault took place.
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On 14 December 2017 the appellant was convicted after a trial held at Snaresbrook Crown Court on one count of sexual assault on a female by penetration. He was sentenced by HHJ del Fabbro to 5 years imprisonment, ordered to pay a £120 surcharge and ordered to sign the Sex Offenders Register for life.
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The appellant continues to deny his guilt.
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An OASys report dated 24 August 2020 identifies the appellant as having not demonstrated any insight as regards the impact of his offence upon the victim. His risk to children was assessed to be at its greatest when under the influence of alcohol.
Deportation proceedings
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A deportation order was signed on 2 October 2018 and served alongside a deportation decision dated 3 October 2018.
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In the meantime, the appellant filed an out-of-time appeal against his conviction with the Court of Appeal in February 2019. In his application for an extension of time in which to appeal the appellant confirmed that his trial lawyers had advised him that there was no identifiable error of law that could found a meriotorious appeal. The appellant relied upon grounds of appeal that he drafted. He asserted that there had been a failure by the CPS to comply with lawful disclosure. He referred to the victim as being a liar and a manipulator. He accused the CPS of being aware that the victim was lying and having taken steps to conceal evidence that would establish his innocence. An allegation was made as to police bias. Witnesses were accused of fabrication. Criticism was made of judicial directions to the jury. An allegation was made that the jury pool was tainted. Complaint was made that defence counsel erred in his professional duty by failing to call three witnesses to give evidence. Complaint was also made that his solicitor had failed to disclose that he ‘works for the CPS’.
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On 19 August 2019 the appellant’s application to appeal against conviction was refused by a Single Judge of the Court of Appeal. Such decision was entirely to be expected considering the grounds of appeal advanced.
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The appellant submitted further representations and the respondent refused his human rights claim by means of a decision dated 11 March 2020.
Hearing before the FtT
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The appeal came before the Judge sitting at Hatton Cross on 17 November 2020. It was conducted remotely, by means of CVP. The Judge had before her a range of documentation including documents relied upon by the appellant and a skeleton argument filed on his behalf.
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The appellant contended that he suffered a miscarriage of justice and affirmed that he is not guilty of the offence for which he was convicted in 2017....
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