Upper Tribunal (Immigration and asylum chamber), 2021-11-17, HU/14192/2018
| Jurisdiction | UK Non-devolved |
| Date | 17 November 2021 |
| Published date | 06 December 2021 |
| Hearing Date | 20 October 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/14192/2018 |
Appeal Number: HU/14192/2018
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/14192/2018
THE IMMIGRATION ACTS
|
Heard at Manchester CJC |
Decision & Reasons Promulgated |
|
On the 20 October 2021 |
On the 17 November 2021 |
Before
UPPER TRIBUNAL JUDGE HANSON
UPPER TRIBUNAL JUDGE KEBEDE
Between
ZK
(Anonymity direction made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: In person.
For the Respondent: Mr Tan, a Senior Home Office Presenting Office.
DECISION AND REASONS
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This matter comes back before the Upper Tribunal to enable it to substitute a decision to either allow or dismiss the appeal following its remittal by the Court of Appeal.
Background
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The facts do not appear to be in dispute. They show the appellant was born in 1994 in Pakistan, the country of which he remains a citizen. He arrived in the United Kingdom in 2001 with his mother when he was 7 years of age. The appellant was granted Indefinite Leave to Remain (ILR) in 2008 in line with his mother’s grant under the legacy programme.
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The appellant married MI, a British citizen in 2013. She was born in Pakistan in 1994 and came to the UK with her father and siblings in 2009 when she was about 15 years of age. The appellant and MI met at college and were friends before getting married.
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The appellant and MI have three daughters who are British citizens, ZO born on the 28 August 2014, ZI born on the 8 October 2016 and a baby girl born on 12 September 2021.
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The appellant and his family live with his extended family which includes the appellant’s mother, brother, sister and nephew in Manchester. Whilst it was previously accepted by the Secretary of State that he is a loving father and husband who has a genuine subsisting relationship with MI and their children, the appellant has been put to proof of this fact by the Secretary of State in her skeleton argument as noted below.
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When Mr Tan was asked about this, he accepted there was no firm evidence of a change in the family situation, and we proceeded on the basis that the previously accepted position is that applicable at the date of the hearing before us.
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The appellant is subject to an order for his deportation from the United Kingdom following his conviction and sentence to 12 months imprisonment having pleaded guilty to a charge of fraud by abuse of position and breach of a conditional discharge. The appellant was released in November 2018, after serving half of his sentence, and the evidence from the Probation Service indicates he presents a low risk of reoffending.
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The Sentencing Judge in his sentencing remarks, illustrating the seriousness of the offence, stated:
“… MK you were born in 1994 and are now 23 years of age, 24 later this month. I have to sentence you for an offence of fraud by abuse of position from when you are a carer for Mr XX. You started working for him on the 11 September 2017 and you were providing 9 hours a week of assistance to him.
As part of your work you helped with money, it is clear, and I have seen a capacity report in respect of him, that he is not able to deal with his own money at all, so part of your job as his carer was to take him to the bank on a Tuesday to help him take his weekly money out. He was utterly dependent on you as his carer to help him with this.
When you were not taking him to the bank to deal with his money, his bank card was supposed to stay in the safe. In fact, it would seem you kept it with you and, certainly by 23 September 2017, so only 12 days after you began work with him, you stole the first amount of money from him using his bank card.
By 5 February 2018 you had emptied his bank account, and that was a bank account that in August 2017, shortly before you started working with him, had contained about £14,000. Over a four-month period you stole from him and you stopped, really, when there was no money left.
You except that you stole £13,590. There is a basis of plea on the digital case system where you accept stealing a lower figure, but I have been told that you have abandoned that basis of plea and I sentence you, therefore, on the basis that you stole £13,590 from Mr XX.
He, I have heard, is a very vulnerable individual indeed, 49 years of age. He has cerebral palsy, a learning difficulty, he is deaf, and he uses a wheelchair. He communicates via signing and a storyboard and, as I have already said, it is plain, he is not able to deal with his own money at all.
When his bank account was looked at, which it was once the money had gone, it was clear that the bank card had been used in shops, restaurants and cash withdrawals that were nothing to do with Mr XX.
When the police searched your house, I am told they found new designer clothes, a designer watch, receipts for gaming and other luxuries. It is clear from the contents of the pre—sentencing report that the money had been spent to purchase luxuries. At one point the card had been used to spend just over £900 in an Indian restaurant to buy dinner for 40 or 50 people.
Mr XX does not really comprehend what has happened, although what he knows has made him sad. His social worker has made a victim impact statement saying that this could not have happened to a more vulnerable individual who is trying very hardest to live independently. He could not be more dependent upon his carers.
The chronology to this offence is significant because in January 2017 you were working in an O2 shop and during the course of that employment you stole £20 in cash from nine different customers. You were arrested and interviewed in February 2017. In October 2017, 12 October 2017, you were given a conditional discharge in respect of that matter and for the majority of this offending you were subject to a conditional discharge.
You told your employer, who was employing you as a carer, that that conviction was as a result of a mistake that you had made, and they allowed you to continue working for them. That clearly is not right, and I have seen the details in relation to that offending and your admissions that you had taken £20 in cash, as I say, from nine different customers who had come into the shop and who thought they were paying towards an upgrade on their telephone.
In terms of mitigation, I have read with care a number of glowing character references, including one from the Iman at your mosque, and others from family members. You are nearly 24 years of age; you are married and you have two young children.
You clearly do a lot of good in the community. You are intelligent. You have the benefit of a good education and a loving family. That makes it all the more puzzling and all the sadder that you would behave in the way that you have and find yourself in the position that you do. I do take account, of course, of the needs of your family and the impact of any sentence upon them, and I have read with care the letter from your wife, and a letter from your brother.
You are said to be remorseful; I hope that is correct. You have indicated a desire to pay £700 by way of compensation and you put the money to one side for that purpose and that is to your credit. You are said to have been overwhelmed at the access to such large amounts of money and, in effect, unable to help yourself. You told yourself at first that you would repay the money.
If that is right, it must have become quickly apparent to you that you are not going to be able to repay the money, and you then continue to steal for a period of, as I say, just over four months…
Procedural issues
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The appellant has previously had the benefit of legal representation but appeared before us as a self-representing litigant. There is within the file copies of a request made by the appellant to adjourn this hearing to enable him to obtain legal representation, all of which have been refused.
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The appellant renewed the application before us claiming, as before, that he needed time to instruct a representative. The appellant tried to obtain legal aid about eight months ago but had been advised it was not available to him. He stated that he would need about £4000 to be able to pay a lawyer although he accepted he did not have such funds himself. His previous adjournment request indicated that he would need permission to work to enable him to earn sufficient funds to pay his legal representative. This clearly would...
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