Upper Tribunal (Immigration and asylum chamber), 2022-04-27, PA/07086/2018
| Appeal Number | PA/07086/2018 |
| Hearing Date | 07 April 2022 |
| Published date | 12 May 2022 |
| Date | 27 April 2022 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal No. PA/07086/2018
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/07086/2018
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision & Reasons Promulgated |
|
On 7 April 2022 |
On 27 April 2022 |
Before
UPPER TRIBUNAL JUDGE O’CALLAGHAN
Between
RICHARD OLAYINKA BABALOA
(ANONYMITY DIRECTION NOT MADE)
Appellant
-and-
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr. M. Marziano of Westkin Associates
For the Respondent: Mr. E Tufan, Senior Presenting Officer
DECISION AND REASONS
Introduction
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The appellant is a national of Nigeria and is presently aged 34. He appeals against a decision of the respondent not to grant him leave to remain on human rights (article 8) grounds. The respondent’s decision is dated 16 May 2018.
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A deportation order made under section 32(5) of the UK Borders Act 2007 was issued by the respondent in respect of the appellant on 29 March 2017.
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The First-tier Tribunal (Judge Page) allowed the appellant’s appeal by a decision dated 18 November 2019. The respondent was granted permission to appeal by Judge O’Brien on 13 December 2019. By a decision dated 15 April 2020 the Upper Tribunal (McGowan J and UTJ Blundell) allowed the respondent’s appeal to the extent that the decision of the First-tier Tribunal was set aside, and it would be remade by this Tribunal. No findings of fact were preserved.
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At the outset I confirm my gratitude to the representatives for their helpful submissions. Further, I am grateful to Mr. Marziano for his detailed skeleton argument which was prepared with considerable skill.
Anonymity
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No anonymity order has been issued to date, and no party requested an order before me.
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I note the 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, 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 has previously 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 the local community.
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I conclude 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 protected under article 8 ECHR (‘article 8’): Cokaj (anonymity orders, jurisdiction and ambit) [2021] UKUT 202, at [17]-[28]. I do not make an anonymity order.
Background
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The appellant entered the United Kingdom as a visitor in August 2000, accompanied by his father. He was aged 13 at the date of his arrival. He remained in this country, overstaying his leave, and lived with his mother. In the meantime, his father returned to Nigeria.
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In January 2005, the appellant’s mother applied for leave to remain on human rights grounds. The appellant, aged 17 at the time, was identified as being dependent on the application along with three siblings. The respondent refused the application by a decision dated 2 February 2005.
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The appellant’s mother made a second application for leave to remain on human rights grounds less than a week after the initial refusal.
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On 29 August 2007, the respondent informed the appellant’s mother through her legal representatives that the appellant could not benefit from the then existing 7-year child policy as the appellant was aged over 18.
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In January 2008, the appellant’s mother applied for leave to remain on human rights grounds, again relying upon the 7-year child policy. The application was rejected on 10 March 2008 with the respondent observing that as the appellant was aged 18 or over he could not fall for consideration under the policy.
Family
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The appellant has a British citizen child from a previous relationship:
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A, aged 14.
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The appellant lived with A’s mother, AH, from 2007 until 2010 when the relationship came to an end. The appellant states that he sees A every weekend. AH is silent in her evidence as to the regularity of contact between father and child.
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The appellant has been in a relationship with a British citizen, MD, since 2012 and they have a child together:
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JL, aged 5.
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MD has a British citizen child from another relationship:
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JP, aged 11.
Criminal Convictions
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The appellant has accumulated numerous convictions since August 2006.
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In August 2006 he was convicted at Croydon Magistrates Court of driving otherwise than in accordance with a licence (not possessing a full licence) and driving with no insurance. He was fined £150 and disqualified from driving for three months.
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In October 2006 he was convicted at Greenwich Magistrates Court of possessing cannabis and failing to surrender to custody. He was fined a total of £90.
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In July 2007 he was convicted at Maidstone Crown Court on five counts of supplying heroin, six counts of supplying crack cocaine and one count of possessing heroin. The supply offences are identified on a police national computer (‘PNC’) print-out as having taken place on 3 May 2006, 4 May 2006, 10 May 2006, 11 May 2006, 15 May 2006, 16 May 2006, 20 May 2006, 22 May 2006, 31 May 2006, 8 June 2006 and 20 June 2006. At the relevant times the appellant was aged 18. The possession charge occurred on 11 January 2007. Having pleaded guilty to all counts he was sentenced to an 18-month community order incorporating a 6-month drug rehabilitation requirement.
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In September 2009 he was convicted at North Kent Magistrates Court of travelling on the railway on 6 July 2009 without paying a fare and fined £40.
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In February 2010 he was convicted at North Kent Magistrates Court of travelling on the railway on 3 December 2009 without paying a fare and fined £350. The offence took place less than three months after his earlier conviction.
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Following coordinated early morning drugs raids at 29 premises across north Kent and south-east London resulting in the arrest of 19 people, the appellant pleaded guilty at North Kent Magistrates Court of supplying crack cocaine. He was committed to Crown Court for sentence and on 9 June 2010 he was sentenced at Maidstone Crown Court to a custodial term of 42 months.
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In May 2013 he was convicted at East Kent Magistrates Court of travelling on the railway on 18 December 2012 without paying a fare and fined £400.
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In August 2013 he was convicted at North East London Magistrates Court of travelling on the railway on 19 April 2013 without paying a fare and fined £400. This offence took place five months after his earlier conviction.
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In February 2016 he was convicted at the County of Wiltshire Magistrates Court of theft from a person and sentenced to undertake a community order with an unpaid work requirement.
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In March 2016 he was convicted at South Essex Magistrates Court of theft and, additionally, of possessing or controlling an article for use in fraud. He was sentenced to 6 months imprisonment on both counts, to be served consecutively. The sentence was suspended for 18 months.
Deportation order
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The appellant applied for leave to remain on human rights (article 8) grounds on 7 August 2015.
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Further to the appellant’s criminal convictions the respondent issued a notice of decision to deport on 9 November 2016. The appellant provided a response to the notice on 29 November 2016.
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The respondent signed a deportation order on 29 March 2017. It was served upon the appellant on 31 March 2017 alongside a decision to refuse leave to remain on human rights grounds. The human rights claim was certified under section 94B of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’), thereby only permitting the appellant an out-of-country appeal right.
Further criminal convictions
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Though subject to a deportation order, the appellant continued to commit crimes.
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In August 2018 he was convicted at Central London Magistrates Court of driving a vehicle whilst unfit through drink or drugs, possessing cannabis, using a vehicle whilst uninsured and driving without a licence. The offences took place on 23 May 2018. He was sentenced to a community order running for 48 weeks with a 4-week curfew requirement and tagging.
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In November 2018 he was convicted at North London Magistrates Court of failing to comply with the requirements of a community order. The court ordered that he continue to undertake the unpaid work requirement of the existing community order.
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In May 2019 he was again convicted at North London Magistrates Court of failing to comply with the requirements of a community order. The order was revoked.
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On 29 May 2019, the appellant was stopped whilst driving a vehicle. There was a delay in proceedings, and he was first convicted for the offences detailed in the paragraph below. For this offence he was convicted in November 2019 at Central London Magistrates Court of driving under the influence of drugs, driving whilst disqualified and using a vehicle without insurance. A custodial sentence of 16 weeks...
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