Upper Tribunal (Immigration and asylum chamber), 2022-05-18, PA/00723/2020
| Appeal Number | PA/00723/2020 |
| Hearing Date | 08 March 2022 |
| Published date | 07 June 2022 |
| Date | 18 May 2022 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: PA/00723/2020
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00723/2020
THE IMMIGRATION ACTS
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Heard at Bradford (via Microsoft Teams) |
Decision & Reasons Promulgated |
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On 8 March 2022 |
On 18 May 2022 |
Before
UPPER TRIBUNAL JUDGE HANSON
Between
M A H
(Anonymity direction made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms Solanki instructed by Duncan Lewis & Co Solicitors.
For the Respondent: Mrs Aboni, a Senior Home Office Presenting Officer.
DECISION AND REASONS
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By decision promulgated on 19 October 2021 the Upper Tribunal set aside a decision of the First-tier Tribunal in this matter and directed that the matter be considered further.
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The appellant is a citizen of Bangladesh born on 1 January 1973.
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There are a number of preserved findings from the earlier decision including those relating to family composition, appellant’s immigration and criminal history, the rejection of the protection claim, the existence of family and private life in the UK, the finding that return to Bangladesh would be an interference with such private and family life, none of which have been challenged.
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The appellant’s immigration history shows he entered the United Kingdom on 25 January 2009 lawfully, with entry clearance as the spouse of a British citizen. On 3 August 2011 he was granted indefinite leave to remain in the UK on the basis of the subsisting marriage.
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On 4 October 2017 the appellant was convicted of sexual assault at the Bristol Crown Court for which he was sentenced to 20 months imprisonment, ordered to pay a victim surcharge £140, and made subject to a Barring Order which will require him to sign on the Sex Offender Register for 10 years from the date of conviction.
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The appellant was notified of the decision to deport him from the United Kingdom and a deportation order issued against him on 18 January 2018. Submissions made opposing the deportation on the basis of the appellant’s human rights was also considered and refused.
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The section of the Sentencing Judge’s remarks set out in the decision to refuse the human rights claim is in the following terms:
“If you would stand up please. This was very serious offending in relation to your wife. She is entitled to feel safe in her own home and with a child present. You, in your drunken state, treated her in an atrocious way and in a way no one should treat another person, whether having been in a relationship in the past or not.
She must have been terrified, and clearly was terrified, and was forced to call her family to seek their protection. She did not think you were still in the house when you assaulted her and that points to their having been elements of Category 1 in the context of the guidelines, but I accept that you had been there with permission earlier in the evening, which perhaps points closer towards Category 2. But I have to sentence you for what you did in the context of your actions.
I do take account of your guilty plea which, in cases such as this, is not always an approach an offender takes. Looking at the matter in the round, after a trial, the sentence would have been 30 months. Credit takes it down to 20 months but you will have to serve that sentence, or at least up to half of it, and then be on licence for the balance.
Sex Offender Registration for whatever the treated period is, if someone can tell me, and the usual barred list matters. Surcharge, I do not make a restraining order as there is no application to make one today. If one is to be made, an application is to be made in the next 56 days to me”.
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The appellant claimed before the First-tier Tribunal that he was at risk on return from the Awami league, as a supporter of Jamaat-e-Islami, in relation to which that Judge found that the appellant’s account was neither credible nor plausible.
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The First-tier Tribunal Judge did not accept that scarring to the appellant’s finger and on his legs was caused as a result of attacks on him or persecution, that if the appellant felt ill at ease in his home area there was no reason why he could not internally relocate, and that it had been noted that in 2008 after his marriage he lived in Dakar for six months without incident.
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The appellant’s claim to face a real risk on the basis of a fear of his wife’s family who he claimed opposed their marriage was considered by the Judge who found that it was unlikely that there is any risk to the appellant from his wife’s family and that the appellant has substantial contacts with relations in Bangladesh.
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The Judge did not find the appellant had made out his claim to be at real risk on return to Bangladesh.
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The First-tier Tribunal also found no very significant obstacles to return.
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In relation to article 8 ECHR; the First-tier Tribunal Judge found that the appellant lives in Bradford with a cousin and the children’s mother lives in Bristol with the children. The Judge noted a report from Bristol Social Services and that the appellant has contact with the children.
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The evidence previously given was that the appellant did not live with his wife as he was not allowed to, but that his wife had said that he was welcome to return but they had no plans to do so at that time due to the situation that prevailed and due to the mental stress. The Judge noted, however that it was clear that the appellant’s wife would not allow him to return, and the Judge found the evidence of the appellant and his wife about their marital life to be unconvincing.
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At [111] of the decision the First-tier Tribunal Judge wrote that he agreed with the findings of an earlier judge that Article 8 family life rights were engaged and that a private life has been formed within the UK.
The evidence
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In the skeleton argument prepared for the purposes of this hearing the background is set out in the following terms:
The factual background to this claim can be summarised as follows,
a. The A is a national of Bangladesh, date of birth 1 January 1973.
b. His parents are deceased, his father having passed away when he was a child and his mother passing in 2013. His brother passed away in 2017 from a heart attack. He has three sisters who are all married.
c. He has been in the UK since January 2009 based on his relationship with his British wife, SB (CB 33).
d. He has three British children from the marriage (CB 30-32) who he maintains contact with. His children are MJH (15 December 2020), MAH (24 June 2013) and MoAH (6 January 2015).
e. MoAH has been diagnosed with autism spectrum condition. His expressive and receptive language skills are delayed, he has limited interaction with his peers and shows limited awareness of their presence, he attends school part-time, he becomes overwhelmed in school, he requires support with feeding, he has no awareness of danger. He requires speech and language therapy and special educational provision (CB 46-84).
f. He had lived with his family and been employed with Dominos since his entry in 2009 until he was detained as a result of offending in 2017 (see §26 grounds of appeal 18/05/2021).
g. He has an offence of sexual assault against his wife, after having been under the influence of alcohol. This is his only offence. His wife made efforts to withdraw the case and all charges in September 2017 without success (CB 29). She wishes for the A to return to live with the family (CB 27-28).
h. He remains married but lives separately from his wife and children. He was a very active father whilst living with his family. He met with them every two months when in prison. When released from immigration detention he went to stay with his cousin in Bradford. His wife and children remained in Bristol. Covid-19 has impacted upon physical contact. He still speaks to his wife and children every day. He wishes to be an involved father and his family wish for this too (CB 37-43). He continues to see his children as often as he can in person and they have plans for him to move back to the family home gradually.
i. He suffers with depressive episode and is said to be at real risk of self-harm and suicide.
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In his witness statement dated 7 March 2022 the appellant confirms that since June 2020 he has remained living in Bradford with a cousin with his wife and children living in Bristol but claims that he is has remained in contact with them despite the distance. In relation to his mental health the appellant writes:
4. My mental health has continued to deteriorate, largely due to my uncertain immigration circumstances. Having been in this country for a significant period of my life and having settled with my family, the prospect of returning to a place where I would most...
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