Upper Tribunal (Immigration and asylum chamber), 2023-07-05, UI-2023-001595
| Appeal Number | UI-2023-001595 |
| Hearing Date | 28 June 2023 |
| Date | 05 July 2023 |
| Published date | 20 July 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2023-001595
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2023-001595 First-tier Tribunal Nos.: PA/52296/2022 and IA/05733/2022 |
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THE IMMIGRATION ACTS
Decision & Reasons Issued:
On the 05 July 2023
Before
UPPER TRIBUNAL JUDGE O’CALLAGHAN
DEPUTY UPPER TRIBUNAL JUDGE SKINNER
Between
Zibusiso Ndlovu
(NO ANONYMITY ORDER MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr J. Mutyambizi-Dewa, of Dewa Legal Services Ltd
For the Respondent: Mr A. Basra, Senior Home Office Presenting Officer
Heard at Field House on 28 June 2023
DECISION AND REASONS
Introduction
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The Appellant is a foreign criminal whom the Respondent has decided should be deported to Zimbabwe, his country of nationality. He appeals, with permission of First-tier Tribunal Judge Gibbs, against the decision of First-tier Tribunal Judge Row (“the Judge”) dated 5 March 2023 (“the Decision”). The Judge dismissed the Appellant’s appeal against the Respondent’s decision of 20 April 2022 rejecting further submissions that the Appellant had submitted on 26 July 2021.
Anonymity
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The Judge granted the Appellant anonymity in the FTT. No reasons for doing so were given and we were told by Mr Mutyambizi-Dewa that there had been no application for anonymity. It has not been suggested that any statutory requirement for anonymity applies. Given that, until the hearing before the Judge, this was pursued as, inter alia, a protection appeal, it would appear that this case was administratively anonymised at case creation on an interim basis in accordance with the FTT’s usual practice, but then no-one positively turned their mind to the question of whether continued anonymisation was appropriate in light of the legal test that applies. In this regard, we note that:
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It is well established that the starting point is open justice. Any derogation from open justice, such as anonymisation, must be necessary.
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As set out in para. 25 of the Upper Tribunal Presidential Guidance Note 2002 No. 2 on anonymity orders and hearings in private, “the fact that someone has committed a criminal offence will not justify the making of an anonymity order, even if it is known that such a person has children who may be more readily identified if the details of the person are known.” Indeed, as Baroness Hale put it in R (C) v Secretary of State for Justice [2016] UKSC 2, [2016] 1 WLR 444 at [36], “The public has a right to know, not only what is going on in our courts, but also who the principal actors are. This is particularly so where notorious criminals are involved. They need to be reassured that sensible decisions are being made about them.” The Appellant may not be notorious, but he has committed a serious criminal offence and is the subject of deportation proceedings in the public interest (see s.117C(1) of the Nationality, Immigration and Asylum Act 2002). The public need to be similarly reassured that sensible decisions are being made in appeals brought by individuals such as the Appellant in relation to their proposed deportation. In deportation appeals, the scales are accordingly weighted significantly in favour of open justice and transparency.
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Even in protection appeals, there must be a justification for the interference with open justice that anonymity orders constitute: Kambadzi v Secretary of State for the Home Department [2011] UKSC 23, [2011] 1 WLR 1299 at [6] per Lord Hope. In this case, at the hearing before the FTT the Appellant withdrew reliance on his asylum claim and relied solely on Articles 3 and 8 ECHR. It was not suggested that his being identified in these appeal proceedings would of itself put him at any risk in Zimbabwe.
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Similarly, there is no general exception to naming a party or witness where private matters or matters relating to an individual’s physical or mental health are in issue: XXX v Camden LBC [2020] EWCA Civ 1468, [2020] 4 WLR 165 at [27] per Dingemans LJ. Without more, the fact that this case involves the Appellant’s claimed schizophrenia does not justify an anonymity order.
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In light of the above, we set aside the anonymity order in this case.
Background
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The Appellant is 39. He came to the UK in January 2002, when he was 17 and claimed asylum. This was refused but he was granted leave to remain until shortly after his 18th birthday. He has at all times since then been in the UK illegally.
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On 10 September 2008, the Appellant was convicted of robbery and sentenced to four years’ imprisonment. It is clear from the sentencing judge’s remarks (and the sentence imposed, notwithstanding his guilty plea) that this was a particularly nasty robbery, against a vulnerable woman on her way home from work at night, which was prolonged and left her with injuries.
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On 9 June 2009, the Respondent decided that it was in principle appropriate to deport the Appellant. In response, the Appellant submitted representations that he was entitled to asylum and that his removal would violate his human rights. On 12 December 2013, the Respondent concluded that his deportation would not have that effect and on 16 December 2013, the Respondent made a deportation order. The Appellant exercised his right of appeal, which appeal was dismissed by a decision of the First-tier Tribunal dated 15 December 2014. The Upper Tribunal refused permission to appeal on 29 April 2015 and appellant’s claim for judicial review of that decision was refused as totally without merit on 10 November 2015.
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Various further applications were then made for leave, each of which was refused.
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On 14 July 2021, the Respondent sought confirmation of the Appellant’s current circumstances, in light of the fact that the Appellant had reported with his daughter, of whom the Respondent was apparently previously unaware. That led to the submission of further representations on 26 July 2021, the rejection of which forms the decision which gives rise to these proceedings.
The appeal to the FTT
The Appeal Skeleton Argument(s)
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As already noted, the Appellant’s protection claim was maintained until the hearing before the Judge, including in the Appellant’s Appeal Skeleton Argument (“ASA”). There were in fact two ASAs in the bundle before us. This appears to be because the first of them was rejected by the FTT on 25 August 2022. In doing so, the Legal Officer stated as follows:
“I have reviewed the appellant’s skeleton argument (‘ASA’) submitted and I am rejecting it as it does not meet the Pilot Directions for the following reasons:
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The ASA does not begin with a suitable summary section as it advances arguments and refers to the law;
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The ASA does not end with a suitable submission section as it does not set out the appellant’s submissions on the issues.
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It is necessary to say something about their quality:
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First of all, neither is signed or dated by their author.
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Second, in each skeleton it is asserted that “The Respondent submitted that the circumstances in Zimbabwe, have changed to warrant the invocation of Article 1C of the 1951 Convention”. The Respondent’s decision however said nothing of the sort. It was not suggested that the Appellant had been a refugee, but no longer was. The decision, rather, rejected the Appellant’s claim for asylum on (a) its merits, and (b) on the basis that he was excluded from the protection of the Convention under Article 33(2). There is no mention of Article 1C. Its inclusion is misleading and meritless.
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Under the heading “Legal Framework”, the first skeleton argument:
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sets out verbatim the whole (20 lines) of Article 1A of the Refugee Convention, contrary to the direction in para. 1 of the Practice Direction of the Immigration and Asylum Chamber of the First-tier Tribunal which states that an ASA “must not include extensive quotations from documents or authorities”.
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In like breach of para.1 of PDIAC, it then sets out the whole of s.117D of the 2002 Act. Given that that is the interpretation section of Part 5A of the 2002 Act, it is not clear why this section has been referred to, at length.
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It then has a heading “Article 8 of the 1950 ECHR”, following which there is no text.
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In the Appellant’s Brief Submissions section of each ASA, the submission is made that the case is distinguishable from JS (Uganda) [2019] EWCA Civ 1670, [2020] 1 WLR 43 on the basis that “although the Appellant is an offender he is no [sic] so serious offender in the mould of JS Uganda. They do not share any other characteristics.” JS (Uganda) was concerned with two issues: first, whether you could be a refugee within the meaning of the Refugee Convention by virtue of a family member’s recognition as such and a grant of leave as the family member of a refugee; and second, whether in any event JS would have lost refugee status by virtue of the change of circumstances pertaining in...
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