Upper Tribunal (Immigration and asylum chamber), 2021-11-25, HU/17511/2016
| Jurisdiction | UK Non-devolved |
| Date | 25 November 2021 |
| Published date | 30 December 2021 |
| Hearing Date | 08 October 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/17511/2016 |
Appeal Number: HU/17511/2016
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/17511/2016 (V)
THE IMMIGRATION ACTS
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Heard at Field House via CVP On the 8 October 2021 |
Decision & Reasons Promulgated On the 25 November 2021 |
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Before
UPPER TRIBUNAL JUDGE O’CALLAGHAN
Between
DKG
(Anonymity Direction Confirmed)
Appellant
-and-
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
DECISION AND REASONS
Representation:
For the Appellant: Mr. P Uzoechina, Solicitor, Patterson & Co
For the Respondent: Mr. S Kotas, Senior Presenting Officer
Introduction
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This is an appeal by the appellant against the decision of Judge of the First-tier Tribunal Beach (‘the Judge’) sent to the parties on 24 March 2020 by which the appellant’s appeal against the decision to refuse him leave to remain in this country on human rights (article 8) grounds and to deport him to Jamaica was dismissed.
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Judge of the First-tier Tribunal Buchanan granted the appellant permission to appeal on all grounds by a decision dated 8 June 2020.
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This Tribunal was only made aware by Mr. Uzoechina at the hearing that an ‘early’ draft of the grounds accompanied the appeal notice, and not the ‘final’ draft. This resulted in ‘ground 5’ not having been placed before Judge Buchanan and various other paragraphs differing from that which the appellant had intended to rely upon. This can properly be identified as an unfortunate state of affairs. Mr. Uzoechina provided both the Tribunal and Mr. Kotas with the ‘final’ draft and Mr. Kotas expressed no objection to this draft constituting the grounds of the appeal.
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Exceptionally, I granted the appellant permission at the hearing to rely upon the final draft of his grounds, observing the overriding objective and noting the respondent’s position.
Anonymity Order
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The Judge issued an anonymity order observing “the appellant has young children whose private and family life may be affected if an anonymity order is not made”.
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The Tribunal is mindful of the observations 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, that defendants in criminal proceedings are usually not 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 convictions, which are a matter of public record and so considered to be known by both the local community and the wider public.
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I raised the appropriateness of the order continuing with the parties at the outset of the hearing. Unfortunately, Mr. Uzoechina’s submissions were of such length that the hearing ended at 17.45 with Mr. Kotas being unable to remain any longer. Whilst satisfied that Mr. Kotas was able to present the entirety of his case on behalf of the respondent, it was not possible to address the issue of the order before the conclusion of the hearing. Having not heard submissions from either representative, particularly as to the children’s circumstances, I conclude, with hesitation, that it would not be fair to set aside the order at this time.
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Any future consideration of anonymity in respect of the appellant should observe that his criminal convictions are a matter of public record when assessing whether his protected rights under article 8 ECHR outweigh the public interest in open justice, as protected by article 10 ECHR: Cokaj (anonymity orders, jurisdiction and ambit) [2021] UKUT 202, at [17]-[28].
Remote Hearing
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The appellant was removed to Jamaica on 1 July 2016, his asylum application having been certified under section 94B of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’).
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The hearing was conducted on the CVP platform, permitting the appellant to attend through the provision of video conferencing facilities by the British High Commission, Kingston, Jamaica. The hearing commenced at 14.30 UK time to permit the appellant the opportunity to view proceedings.
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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.
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During the hearing the microphone on my desk ceased to work. Several other microphones placed elsewhere in the hearing room were utilised. The representatives and the appellant confirmed that they could hear me, and each other. They confirmed that they were able to follow proceedings throughout. The appellant confirmed the same.
Background
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The appellant is a national of Jamaica and is presently aged 30. In August 2002, when aged 10, he entered the United Kingdom as a visitor. He made an in-time application for leave to remain in this country, which was rejected by the respondent on 3 April 2003. A subsequent application for leave to remain was also rejected as invalid. He was served with enforcement papers as the family member of an overstayer in March 2008, when aged 16.
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He applied for leave to remain in July 2012. The application was refused by the respondent on 19 April 2013. The appellant withdrew his appeal against this decision in October 2013.
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He applied for leave to remain in October 2013 and the application was refused by a decision dated 18 December 2013 with no attendant right of appeal.
Family
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The appellant has been in a relationship with ‘C’, which has ended and resumed on occasion. They have two children, aged 10 and 7. Before the appellant’s removal, they did not reside together, the appellant alternating between his parents’ and C’s homes.
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The appellant was in a relationship with ‘T’ and they have a child, aged 8. T visited the appellant in Jamaica in 2017, after his removal. She did not attend the appeal hearing before the First-tier Tribunal.
Criminal offending
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The appellant was convicted of shoplifting in February 2009, when aged 17, and given a three-month referral order.
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In June 2009, when aged 18, the appellant was convicted of robbery and possession of a lock-knife. He was given a conditional discharge for thirty-six months.
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In September 2009 he was sentenced to eight weeks’ imprisonment for possession of a class A drug (cocaine).
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In May 2010 he was convicted of possession of a class B drug (cannabis) and fined £50.
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In November 2010 he was convicted of resisting or obstructing a constable and sentenced to a community order and a curfew requirement for eight weeks with electronic tagging.
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In March 2011 he was convicted of a failure to comply with the requirements of a community order and ordered to continue to serve the community order. He was made subject to a curfew requirement for two weeks.
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In May 2013 the appellant was convicted of possession of a class B drug (cannabis) and fined £60.
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In February 2015 the appellant was convicted of possession with intent to supply a class B drug (cannabis) at Wood Green Crown Court and was sentenced to eighteen months’ imprisonment. The sentencing judge remarked, inter alia:
‘You have pleaded guilty rather late in these proceedings to having cannabis in your possession with intent of supplying it. That it seems to me is perfectly plain on the evidence that I have looked at. Police officers obviously had sufficient and good information about drugs and when they exercised that warrant and got into your girlfriend’s home, there was your rucksack with all your merchandise inside it; over 250 bags, over 226 grams of cannabis, all bagged up, some of it ready to be sold no doubt in £10 deals on the street. You had the wherewithal to carry out a business and there was the evidence on your mobile telephone that that was exactly what you were engaged in. The requests were there for amounts of cannabis.
… However, you got the money to start up your illegal business; it certainly was a business, you had the money in order to be able to do it, you had the merchandise in order to be able to do it and I take the view that you were doing it for profit. …'
Deportation proceedings
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The respondent served a deportation order upon the appellant on 21 April 2015, accompanied by a decision to refuse a human rights claim. The appellant’s human rights claim was certified under section 94B of the 2002 Act. That decision was subsequently withdrawn, following the grant of permission in judicial review proceedings (JR/4971/2015).
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A new decision was issued on 28 July 2015. A supplementary decision letter was served on 9 October 2015. The human rights claim...
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