Upper Tribunal (Immigration and asylum chamber), 2023-06-26, HU/16484/2017
| Appeal Number | HU/16484/2017 |
| Hearing Date | 19 January 2023 |
| Date | 26 June 2023 |
| Published date | 26 July 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: hu/16484/2017
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: HU/16484/2017 |
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THE IMMIGRATION ACTS
Decision & Reasons Issued:
On the 26 June 2023
Before
UPPER TRIBUNAL JUDGE NORTON-TAYLOR
UPPER TRIBUNAL JUDGE O’CALLAGHAN
Between
A A
(ANONYMITY ORDER MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr L Youssefian , Counsel, instructed by Aylish Alexander Solicitors
For the Respondent: Mr D Manknell, Counsel, instructed by the Government Legal Department
Heard at Field House on 19 January 2023
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant and any member of his family is granted anonymity.
No-one shall publish or reveal any information, including the name or address of the Appellant, likely to lead members of the public to identify the Appellant and any member of his family. Failure to comply with this order could amount to a contempt of court.
DECISION AND REASONS
INTRODUCTION
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It might by now appear trite to say that the determination of appeals in the context of deportation involves multi-faceted and highly fact-specific assessments of the evidence. It is, however, worth re-iterating the point at the outset of our decision. Whilst we address certain issues of law relating to Article 8 ECHR (“Article 8”), the majority of what follows relates simply to the application of the particular circumstances of this case to uncontroversial guidance derived from the authorities. Our analysis and conclusions should not therefore be taken as a factual precedent. The dangers inherent in relying on the facts in one case to justify an outcome in another have been highlighted in several authorities. At [50] of MI (Pakistan) v SSHD [2021] EWCA Civ 1711, Underhill LJ said as follows:
“50… It is dangerous to treat any case as a factual precedent as HA (Iraq) made clear (at [129]). In the particular context of an evaluative exercise there is a limit to the value to be obtained from considering how the relevant legal test was applied to the facts of a different (albeit similar) case, especially where there may be questions as to the true level of similarity between the two cases given the almost infinitely variable range of circumstances and subsisting parent/child relationships that might be involved (see HA (Iraq) at [56]). Ultimately it is the statutory test itself that matters and that must be applied by the first instance tribunal making its own evaluation of the facts in the case with which it is concerned.”
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From the legal perspective, the predominant issue with which this case is concerned is that of delay in the context of deportation. In particular, the question arises as to whether the judicial headnote in RLP (BAH revisited - expeditious justice) Jamaica [2017] UKUT 00330 (IAC) is a correct exposition of the law in light of the Court of Appeal’s judgment in SSHD v MN-T (Colombia) [2023] EWCA Civ 8931.
PROCEDURAL BACKGROUND
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This is the re-making of the decision in the Appellant’s appeal against the Respondent’s refusal of his human rights claim. This follows our previous decision, promulgated on 24 October 2022, in which we concluded that the First-tier Tribunal (“the FTT”) had materially erred in law when allowing the appeal on Article 8 grounds. Our full decision is annexed to this re-making decision. In summary, we concluded that the judge below had erred by failing to provide legally adequate reasons in respect of the significance attached to: (a) rehabilitation; (b) what might be described as the value to the community factor; and (c) delay by the Respondent.
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The appeal before the FTT involved not only the refusal of a human rights claim, but also a decision by the Respondent to revoke the Appellant’s refugee status. That particular issue was concluded against the Appellant and there was no challenge to this aspect of the FTT’s decision. Thus, there are no protection-related issues before us.
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The Appellant is a citizen of Turkey. He left that country in early 1988 and travelled to France, where he was subsequently granted refugee status. In September 1990 he arrived in United Kingdom and in December of that year he married a Turkish citizen, AA. The couple’s daughter, PA, was born in 1991. When it transpired that the Appellant had been recognised as a refugee in France, his status was transferred to this country and he was granted leave to remain from 1993 to 1997.
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In May 1996 the Appellant was convicted of conspiracy to import almost 200kg of heroin with a street value of approximately £14 million. He was initially sentenced to 20 years’ imprisonment, but this was reduced to 15 years on appeal: R v Kaynak and Others [1998] 2 Cr App R 283.
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The Appellant was released from prison on licence in September 2003. Shortly thereafter, a decision to deport him was issued, against which an appeal was lodged. Later in 2003 the Appellant’s first son, UA, was born. His second son, AY, was born in 2005.
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The 2003 deportation decision was withdrawn in April 2007 on the basis that the Appellant’s refugee status had not been considered. In May of that year a new deportation decision was issued and an appeal lodged against it. A month later that decision was also withdrawn because the Appellant’s refugee status had yet again not been properly addressed. In October 2007 the Appellant was informed by the Respondent that deportation would not be pursued at that time. The Respondent accepted that removal from the United Kingdom to Turkey at that time would have exposed the Appellant to a risk of treatment contrary to Article 3 ECHR (“Article 3”). The Appellant was consequently granted 6 months’ leave to remain, pursuant to the Respondent’s policy on discretionary leave (which included guidance on the granting of shorter periods of leave to foreign national offenders). The Appellant was then granted a further three periods of 6 months’ discretionary leave to remain. We understand that leave finally expired in April 2011.
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Following an application made in November 2011 the Appellant was granted leave to remain as a businessman under the Turkish EC Association Agreement (“ECAA”) in February 2012. Another application in the same category was made in early 2013. This was refused by the Respondent, but an appeal to the FTT in 2014 was successful. Implementing that decision, the Appellant was granted a further period of leave under the ECAA from May 2015 until February 2016. Prior to the expiry of that leave the Appellant applied for indefinite leave to remain in the United Kingdom. Whilst that application was pending, the Respondent made the two decisions which formed the basis of the appeal to the FTT. The refusal of the human rights claim was dated 1 December 2017, and the decision to revoke refugee status was dated 21 September 2017 and served on 1 December of that year.
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The Appellant’s appeal was initially dismissed on all grounds by a decision promulgated on 7 November 2018. An onward appeal to the Upper Tribunal in March 2019 resulted in the decision of the FTT being set aside in respect of both the protection and Article 8 issues. The appeal was remitted to the FTT for a complete re-hearing.
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The remitted appeal was then allowed on Article 8 grounds, but dismissed in respect of the protection grounds. The Respondent appealed to the Upper Tribunal in respect of the Article 8 outcome and the Appellant cross-appealed on the protection issue. By a decision promulgated on 28 April 2020, the panel (comprising Johnson J, sitting as a Judge of the Upper Tribunal, and Upper Tribunal Judge Kopieczek) allowed the Respondent’s appeal and dismissed the Appellant’s cross-appeal.
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The panel’s decision was then the subject of an appeal to the Court of Appeal, but only in respect of the Article 8 issue. Permission to appeal was granted by Nugee LJ on 17 November 2020 on the basis that there existed “an evident tension in the authorities” relating to the significance of delay in deportation cases, which raised an important point of principle.
The parties subsequently agreed that the panel had erred in its approach to the delay issue, that its decision should be set aside, and that the appeal should be remitted for the Upper Tribunal to consider whether the FTT had erred in law. A detailed statement of reasons to that effect...
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