Upper Tribunal (Immigration and asylum chamber), 2017-04-20, RP/00082/2015
| Appeal Number | RP/00082/2015 |
| Hearing Date | 17 March 2017 |
| Published date | 08 June 2022 |
| Date | 20 April 2017 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: RP/00082/2015
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: RP/00082/2015
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 17 March 2017 |
On 20 April 2017 |
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Before
UPPER TRIBUNAL JUDGE O’CONNOR
Between
Secretary of State for the Home Department
Appellant
and
ahmed omer
(ANONYMITY DIRECTION NOT MADE)
Respondent
Representation:
For the Appellant: Mr C Avery, Senior Presenting Officer
For the Respondent: Not represented
DECISION AND REASONS
Introduction
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The appellant before the Upper Tribunal is the Secretary of State for the Home Department. For the sake of convenience, I shall refer herein to Mr Omer as the claimant.
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The Secretary of State has made the following decisions in relation to the claimant;
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On 31 December 2003, the claimant, then aged 14, was granted indefinite leave to enter as the dependent of his mother, who had herself been granted the same status as a consequence of being the spouse of a person granted indefinite leave to remain as a refugee (the claimant’s stepfather);
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In a letter dated 5 March 2015 the Secretary of State notified the claimant that she had decided to make a deportation order against him in accordance with Section 32(5) of the UK Borders Act 2007;
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On 12 September 2015, the Secretary of State made a combined decision headed: “Decision to revoke a protection status and refuse a human rights claim”;
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Two days later, on 14 September 2015, the Secretary of State signed a deportation order in the claimant’s name.
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The decision to deport the claimant, and all that followed, was made by the SSHD as a consequence of (i) the claimant’s conviction at Snaresbrook Crown Court on 2 March 2015 for robbery and breach of conditional discharge, for which he was sentenced to twelve months’ imprisonment, and (ii) his earlier convictions for (a) theft from a person on 13 July 2014 and (b) on 18 August 2014 for possessing a controlled drug of class A and destroying or damaging property - for which he was sentenced to 24 hours at an attendance centre and eighteen months’ conditional discharge, respectively.
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The claimant brought an appeal before the First-tier Tribunal (“FtT”). Contrary to the understanding of the FtT the claimant did not have a right of appeal against the decision to deport him, this being as a consequence of the amendments to Section 82 of the Nationality, Immigration and Asylum Act 2002 brought about by Section 15 of the Immigration Act 2014 (which came into force on 20 October 2014). He was, however, entitled to, and did, bring an appeal against both decisions made by the Secretary of State identified in her letter of 12 September 2015.
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In summary, the FtT concluded that:
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The SSHD was entitled to revoke/cease the claimant’s refugee status [105] to [109];
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The claimant was not entitled to a grant of humanitarian protection [110] - [117]
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There were no substantial grounds for believing that on return to Mogadishu the claimant would face a real risk of persecution or ill-treatment of such severity so as to cross the Article 3 ECHR threshold [110] to [117];
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The claimant does not meet the requirements of paragraph 399A of the Immigration Rules [118];
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The claimant does not meet the requirements of paragraph 399(b) of the Rules [125];
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The claimant’s deportation would breach Article 8 ECHR [119] to [126].
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Error of Law – A Summary
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The Secretary of State appealed to the Upper Tribunal, with the permission of First-tier Tribunal Judge Page, against the FtT’s decision allowing the claimant’s “appeal against deportation on human rights (Article 8) grounds”. By way of a decision promulgated on 11 October 2016 I set aside the determination of the FtT for the following reason:
“[30] Looking at the decision of the FtT as a whole, it is clear that the Tribunal takes into account a number of immaterial matters and fails to adequately reason why a number of other matters have been taken into account in the claimant’s favour. In all the circumstances, I find that the FtT’s decision on Article 8 ECHR contains an error of law capable of affecting the outcome of the appeal and I, therefore, set it aside.”
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I directed that the decision be re-made by the Upper Tribunal and that the scope of the remaking be limited to (a) Article 8 ECHR grounds and (b) a consideration of the lawfulness of the Secretary of State’s decision to revoke refugee status in light of the conclusions in Dang (refugee – query revocation – Article 3) [2013] UKUT 00043.
Re-making of Decision under Appeal
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Regrettably the re-making of the decision under appeal has been delayed because of the necessity to adjourn the hearing listed for 1 December 2016 as a consequence of, inter alia, the late withdrawal of the claimant’s legal representatives, the claimant having indicated a wish to find alternative representation. It appears that thereafter the claimant re-engaged the same solicitors. A notice of hearing was sent to these solicitors on 6 February identifying the 17 March as the date set for the hearing of the appeal. However, by way of a letter received by the Tribunal on 9 March 2017, these representatives once again notified the Tribunal that they had withdrawn their representation of the claimant and would not be attending the hearing.
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The claimant attended the hearing of 17 March in person. No application for an adjournment was made and the claimant indicated that he was not able to pay for legal representation. In all the circumstances, and having considered the overriding objective set forth in the 2008 Procedure Rules, I concluded that it was appropriate to proceed with the hearing.
Scope of re-making
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As identified above, the scope of the hearing was limited to a consideration of (a) Article 8 ECHR, which must incorporate within it a consideration of the relevant Immigration Rules, and (b) the lawfulness of the Secretary of State’s decision to revoke refugee status in light of the conclusions of the Tribunal in Dang (refugee – query revocation – Article 3) [2013] UKUT 00043 (the ‘Dang issue’).
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The FtT dismissed the claimant’s appeal on Article 3 ECHR and humanitarian protection grounds, and further concluded that the claimant does not have a well-founded fear of being persecuted in Somalia. These findings have not been the subject of appeal and nothing in the evidence before me leads me to conclude that it is appropriate to re-open these matters.
The Law – Article 8
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Section 32 of the UK Borders Act 2007 provides that for certain categories of foreign criminal, including those convicted in the United Kingdom of an offence and sentenced to a period of imprisonment of at least 12 months, their deportation "is conducive to the public good" for the purposes of section 3(5)(a) of the Immigration Act 1971 (section 32(4)). Subject to what is said in section 33, it is obligatory for the Secretary of State to make a deportation order in respect of such persons (section 32(5)).
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Section 33 of the 2007 Act provides exceptions to the aforementioned obligation, including in circumstances where removal of the foreign criminal would breach a person's Convention rights (section 33(2)(a)).
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Article 8 provides:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
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Part 5A of the Immigration Act 2014 amended the Nationality, Immigration and Asylum Act 2002, to include the following:
“PART 5A
Article 8 of the ECHR: public interest considerations
117A Application of this Part
(1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts—
(a) breaches a person’s right to respect for private and family life under Article 8, and
(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.
(2) In considering the public interest question, the court or tribunal must (in particular) have regard—
(a) in all cases, to the considerations listed in section 117B, and
(b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.
(3) In subsection (2), “the public interest question” means the question of whether an interference with a person’s right to respect for private and family life is justified under Article 8(2).
117B Article 8: public interest considerations applicable in all cases
(1) The maintenance of effective immigration controls is in the public interest.
(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that...
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