Upper Tribunal (Immigration and asylum chamber), 2023-06-14, UI-2022-006242
| Appeal Number | UI-2022-006242 |
| Hearing Date | 26 May 2023 |
| Date | 14 June 2023 |
| Published date | 14 June 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2022-006242
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2022-006242 |
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First-tier Tribunal No: HU/54450/2022 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 14 June 2023
Before
THE HON. MR JUSTICE DOVE, UTIAC PRESIDENT
(SITTING AS A JUDGE OF THE UPPER TRIBUNAL)
JUDGE MELANIE PLIMMER, FTTIAC PRESIDENT
(SITTING AS A JUDGE OF THE UPPER TRIBUNAL)
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
TC
(ANONYMITY ORDER MADE)
Respondent
Representation:
For the Appellant: Ms Ahmed, Senior Home Office Presenting Officer
For the Respondent: Mr Pipe, Counsel
Heard at Field House on 26 May 2023
Order Regarding Anonymity: Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant and members of his immediate family are 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 his family members. Failure to comply with this order could amount to a contempt of court.
DECISION AND REASONS
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The SSHD has appealed against a decision of the First-tier Tribunal (‘FTT’) dated 5 December 2022, allowing TC’s appeal on all grounds. In this decision we refer to the parties as they were before the FTT, i.e., TC as the appellant and the SSHD as the respondent.
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We have maintained the anonymity order granted by the FTT because the appellant continues to rely upon his international protection claim. The importance of facilitating the discharge of the obligations of the United Kingdom (‘UK’) under the Refugee Convention outweighs the principle of open justice.
Background
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The appellant is a national of Zimbabwe, who was born in 1990. He came to the UK in 2014, when he was 14, with indefinite leave to enter on the basis that his mother had been recognised as a refugee. The appellant was granted refugee status ‘in line’ with his mother.
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The appellant commenced a relationship with his current partner in March 2018. They have a 2-year-old son, who was born in February 2021.
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On 25 May 2018 the appellant was convicted of kidnapping and actual bodily harm. He received concurrent sentences of imprisonment of 42 months and 18 months respectively. Prior to this, he received three cautions between 2008 and 2017. In addition, on 23 February 2017 he was convicted of dangerous driving and on 5 May 2017 he was convicted of possession of a Class B drug and sentenced to six months imprisonment. Following this offence, the respondent wrote to the appellant on 17 May 2017 warning him that if he continued to offend, he may be liable to deportation.
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The appellant was served with a decision to deport him dated 14 June 2018 and a letter dated 11 December 2018 informing him of the respondent’s intention to exclude him from the Refugee Convention protection on the basis of his criminal offending pursuant to s.72 of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’). He was also issued an intention to cease his refugee status on 15 February 2019. In written representations the appellant outlined why he was not a danger to the community and why he continued to be entitled to refugee status. The UNHCR also explained why his refugee status should not cease in a letter dated 22 March 2019.
Refusal decision
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In a decision dated 1 July 2022 (‘the refusal decision’), the respondent inter alia:
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certified that the s.72 presumption applies because the appellant was convicted of a particular serious crime (having been sentenced to a period of imprisonment of two years) and had not rebutted the presumption that he constitutes a danger to the community;
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revoked the appellant’s refugee status under para 339A(v) of the Immigration Rules and Article 1C(5) of the Refugee Convention on the basis that he was no longer dependent upon his mother and the circumstances in Zimbabwe for a person like him (who did not have a significant MDC profile and came from an urban area) had fundamentally and durably changed, such that the circumstances in connection with which he had been recognised as a refugee ceased to exist;
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concluded that the appellant’s medical condition did not meet the severity threshold to engage Article 3, ECHR and that he has sufficient links and access to support in Zimbabwe to obviate any contravention of Article 3;
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concluded that the appellant did not meet the requirements of para 399A of the Immigration Rules on the basis that he was not socially and culturally integrated in the UK and there would not be very significant obstacles to his integration there;
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concluded that there would be no breach of Article 8, ECHR on the basis of the appellant’s relationship with: a) his partner, because they were not in a genuine and subsisting relationship and in any event she could reasonably move to Zimbabwe to live with him, and; b) his son, because it was believed at the time that the appellant did not claim to have a family life with children;
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concluded that the appellant was unable to demonstrate evidence of a very strong Article 8 claim over and above the exceptions to outweigh the very significant public interest in deportation.
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Appeal skeleton argument
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The appellant has been represented by solicitors and Mr Pipe of Counsel throughout these proceedings. In compliance with directions, his solicitors provided an appeal skeleton argument (‘ASA’) dated 9 September 2022, prepared by Mr Pipe. The ASA complies with the requirements of the Practice Statement No 1 of 2022 (‘the PS’) in that it contain three sections: (i) a brief summary of the factual case; (ii) a schedule of issues; (iii) brief submissions on those issues which state why the appellant disagrees with the respondent’s decision with sufficient detail to enable the reasons for the challenge to be understood [A.4 and A.5]. The ASA also complies with the requirements of [A.6] as it: is concise; is set out in numbered paragraphs; engages with the decision letter under challenge; does not include extensive quotations from documents or authorities; identifies the relevant evidence and principles of law to enable the basis of the challenge to be understood [A.6]. As the ASA refers to material not included in the respondent’s bundle, the relevant material was provided in an indexed and paginated 326-page bundle at the same time [A.7].
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The schedule of disputed issues in the ASA draws upon the issues in the refusal decision as follows:
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whether the appellant has rebutted the s.72 presumption that he is a danger to the community;
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whether the respondent has established that cessation under 339A(v) applies;
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whether the respondent’s decision breaches Article 3;
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whether Exception 1 applies;
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whether Exception 2 applies;
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whether s.117(6) of the 2002 Act applies.
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Applying either s.117C of the 2002 Act or paragraphs 398-399 of the Immigration Rules, this appellant is deemed to be a medium offender as he was not sentenced to a period of imprisonment of four years or more. S.117C(3) provides that the public interest requires the appellant’s deportation unless Exception 1 (must be lawfully resident, socially and culturally integrated in the UK and there would be very significant obstacles to integration in returning country) or Exception 2 (effect of deportation on partner or qualifying child would be unduly harsh) applies.
Evidence relevant to the appellant’s mental health
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The ASA specifically cross-references to additional evidence in the appellant’s bundle, including detailed evidence relevant to the appellant’s mental health. It is necessary to set this out in some detail. The FTT(HESC)(Mental Health) decision dated 30 December 2021 (‘the 2021 FTT mental health decision’) provides an independent detailed insight into the appellant’s mental health up to that point. Further detail and more up to date assessments are to be found in the following: a report dated 22 August 2022 from Mr Evans, the appellant’s community psychiatric nurse; a report dated 31 August 2022 from Mr Gregory, a registered mental health nurse who had been working with the appellant since October 2020; a report dated 1 September 2022 from Ms Joliffe, a trainee clinical psychologist under the supervision of a lead clinical psychologist. We summarise the most relevant aspects of this evidence.
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The appellant reported to the 2021 FTT mental health panel that he had flashbacks to his time as member of the Zanu-PF youth in Zimbabwe (summarised as being a child soldier) and these occurred when he was serving his prison sentence. He was in contact with mental health services whilst in prison.
The appellant was released from prison on licence on 21 February 2020. He has been known to secondary psychiatric services since March 2020 when he was referred to psychological therapy due to symptoms of PTSD related to his time as a child soldier. Before this could be...
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