Upper Tribunal (Immigration and asylum chamber), 2022-03-30, HU/14689/2019
| Appeal Number | HU/14689/2019 |
| Hearing Date | 03 February 2022 |
| Published date | 19 April 2022 |
| Date | 30 March 2022 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: HU/14689/2019
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Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: HU/14689/2019 |
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 3 February 2022 |
On the 30 March 2022 |
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Before
UPPER TRIBUNAL JUDGE BLUNDELL
Between
nizam salim bagus
(Limited Anonymity Order Made)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Lam, of counsel, instructed by MRKS Solicitors
For the Respondent: Ms Ahmed, Senior Presenting Officer
DECISION AND REASONS
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On 2 February 2021, I issued my first decision in this appeal. I held that the First-tier Tribunal (Judge Keane) had erred in law in allowing the appellant’s appeal against the respondent’s refusal of his human rights claim. I ordered that the appeal would be retained in the Upper Tribunal for remaking, although I preserved the judge’s primary findings of fact as to the appellant’s relationship with his partner and daughter and the best interests of the latter.
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It is not clear to me why there was a delay of a year between the issuance of my first decision and the resumed hearing. I can only assume that the need for a face-to-face hearing and the vicissitudes of the pandemic were responsible.
Background
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In my first decision, I said this about the background to the appeal:
[3] The appellant is a citizen of Malawi who was born on 29 June 1991. He arrived in the United Kingdom in 2004. He held entry clearance as a student which was valid until 31 August 2007. He was granted further leave to remain in the same capacity until 31 October 2009. A subsequent application for leave to remain was refused because of the appellant’s convictions but an appeal was allowed and the appellant was granted leave to remain until 2 May 2011. The appellant did not attempt to regularise his status thereafter.
[4] The appellant has a number of criminal convictions. His first was on 19 May 2009, his last on 25 February 2020. The helpful summary at the start of the PNC record shows five offences against the person; two theft and kindred offences; two offences relating to police, courts and prisons; three drug offences and three miscellaneous offences. The respondent summarised the sentences received by the appellant in the following way, at [20] of her decision:
You have received a combination of orders to pay costs, compensation and victim surcharges, fines, Community Orders, Referral Orders, Unpaid Work Requirements and Supervision Requirements. You have also been sentenced to 2 months imprisonment which was wholly suspended for 15 months.
[5] It was as a result of these convictions that the respondent concluded that the appellant was a persistent offender and that his deportation was deemed to be conducive to the public good. On 20 March 2019, he was served with a decision to make a deportation order on that basis. Submissions against that course were made by the appellant on 5 April 2019 and 31 May 2019.
[6] On 12 August 2019, the respondent wrote to the appellant to state that his human rights claim had been refused. It was not accepted that the appellant had a genuine and subsisting parental relationship with his daughter, B, who was born on 6 November 2014. In any event, it was not considered to be unduly harsh on B or her mother, C, to deport the appellant. They could live with him in Malawi or remain in the UK without him. It was not accepted that the appellant had spent most of his life lawfully in the UK. Nor was it accepted that the appellant was socially and culturally integrated into the UK or that he would encounter very significant obstacles to his re-integration into Malawi. The respondent finally considered whether there were very compelling circumstances which outweighed the public interest in the appellant’s deportation. She concluded that there were not.
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The judge in the First-tier Tribunal accepted that the appellant had a genuine and subsisting relationship with C and B and that it would be in B’s best interests for the appellant to remain in this country with her. As I have noted above, there was no error of law in those findings, which are accordingly preserved for the purpose of this hearing.
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I should note two further matters by way of introduction. The first is that the appellant now has a further conviction, beyond those which are detailed above. On 26 April 2021, he was convicted of possessing cannabis and was sentenced by East London Magistrates’ Court to a fine of £200, costs of £400, a victim surcharge of £34 and forfeiture and destruction of the drugs.
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The second additional matter results from an observation I made at [27] of my first decision. I noted that the FtT had not considered whether the appellant was a persistent offender (or an individual whose crime had caused serious harm) and I suggested that this statutory question, as posed by s117D(2)(c) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) was for future consideration. I also noted that “the appellant is not liable to deportation if neither label is held to apply”.
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At the start of the hearing before me, Ms Ahmed helpfully indicated that it was her intention to submit that the appellant was a persistent offender and not that his offending had caused serious harm. She did not accept that the additional observation I had made (without the benefit of argument) was an accurate or complete statement of the law. She directed me to the Upper Tribunal’s decision in Wilson (NIAA Part 5A; deportation decisions) [2020] UKUT 350 (IAC) and submitted that the correct approach was to be found in the final two paragraphs of the headnote to that decision:
(1) In a human rights appeal, the decision under appeal is the refusal by the Secretary of State of a human rights claim; that is to say, the refusal of a claim, defined by section 113(1) of the Nationality, Immigration and Asylum Act 2002, that removal from the United Kingdom or a requirement to leave it would be unlawful under section 6 of the 1998 Act. The First-tier Tribunal is, therefore, not deciding an appeal against the decision to make a deportation order and/or the decision that removal of the individual is, in the Secretary of State's view, conducive to the public good. It is concerned only with whether removal etc in consequence of the refusal of the human rights claim is contrary to section 6 of the Human Rights Act 1998. If Article 8(1) is engaged, the answer to that question requires a finding on whether removal etc would be a disproportionate interference with Article 8 rights.
(2) The Secretary of State's decisions under the Immigration Act 1971 that P's deportation would be conducive to the public good and that a deportation order should be made in respect of P would have to be unlawful on public law grounds before that anterior aspect of the decision-making process could inform the conclusion to be reached by the First-tier Tribunal in a human rights appeal.
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Mr Lam did not disagree with this analysis. It was therefore agreed that the issues which fell for consideration were: whether the appellant is a persistent offender; if so, whether his deportation is proportionate having regard to the public interest considerations in s117B and s117C of the 2002 Act; or, if not, whether the appellant’s removal is proportionate, having regard to the considerations in s117B of the 2002 Act.
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Mr Lam required further time to consider the PNC record upon which Ms Ahmed proposed to rely. He had additional time, after which he confirmed that the record of the convictions was agreed.
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Mr Lam stated that he did not propose to call his client to give evidence, given the preserved findings of fact. I indicated that I was somewhat surprised by that indication, given that the impact of the appellant’s deportation on his partner and child remained very much in issue. I noted that there was a preserved finding as to the relationships and the best interests of the child but that the statutory test in s117C(5) was still to be applied. Mr Lam reflected on that observation and decided to call his client to give evidence.
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The appellant gave the only live evidence before me. He was asked questions by Mr Lam and was cross-examined at some length by Ms Ahmed. I do not propose to rehearse his oral evidence. There is a full note of it in the Record of Proceedings and it was also digitally recorded. I will refer to what he said insofar as it is necessary to do so to explain my findings of fact.
Submissions
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Ms Ahmed submitted that the appellant was a persistent offender, as defined in Binbuga v SSHD [2019] EWCA Civ 551; [2019] Imm AR 1026, SC (Zimbabwe) v SSHD [2018] EWCA Civ 929; [2018] 1 WLR 4474 and Chege (“is a persistent offender”) [2016] UKUT 187 (IAC); [2016] Imm AR 833. He was plainly a person who kept breaking the law. He had received 11 convictions for 17 offences, including robbery and drug related offences during his appeal. He had no regard for the law, as was evidenced by his continuous offending in the face of deportation...
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