Upper Tribunal (Immigration and asylum chamber), 2023-04-29, IA/00621/2021
| Appeal Number | IA/00621/2021 |
| Hearing Date | 13 February 2023 |
| Published date | 17 May 2023 |
| Date | 29 April 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Case No: UI-2021-001318
First-tier Tribunal No: HU/50177/2021
IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2021-001318
First-tier Tribunal No: HU/50177/2021; IA/00621/2021
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On the 29 April 2023
Before
UPPER TRIBUNAL JUDGE BRUCE
DEPUTY UPPER TRIBUNAL JUDGE MALIK KC
Between
MENTOR MARKU
(ANONYMITY DIRECTION NOT made)
Appellant
and
SECRETARY OF STATE
FOR THE HOME DEPARTMENT
Respondent
Representation
For the Appellant: Mr Peter Blackwood, Counsel, instructed by Qualified Legal Solicitors
For the Respondent: Mr David Clarke, Senior Presenting Officer
Heard at Field House on 13 February 2023
DECISION AND REASONS
Introduction
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This is remaking of the decision in the Appellant’s appeal from the Secretary of State’s decision of 22 January 2021. By that decision, the Secretary of State refused the Appellant’s human rights claim based on Article 8 of the European Convention on Human Rights and his associated application to revoke the deportation order made against him.
Factual background
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The Appellant, who says that his real name is Mentor Serban, is a citizen of Albania and was born on 7 May 1981.
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The Appellant arrived in the United Kingdom clandestinely on 19 October 2000 at Dover port and made an asylum claims with false details. He stated that his name was Lumni Halili and he was born on 1 January 1984. He pretended to be a citizen of Kosovo and claimed to be at risk of persecution by the Serbian authorities. The Secretary of State refused the protection claim on 11 May 2021 but granted him exceptional leave to remain in the United Kingdom until 1 January 2002. He made another asylum claim with false details on 6 December 2000. He stated that his name was Mentor Marku and he was born on 1 December 1984. He again pretended to be a citizen of Kosovo and claimed to be at risk of persecution by the Serbian authorities. The Secretary of State recognised him as a refugee and granted him indefinite leave to remain in the United Kingdom on 13 June 2002.
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The Appellant was convicted on 6 May 2009 of wounding with intent to do grievous bodily harm. He was sentenced to four years imprisonment on 29 May 2009. According to the sentencing remarks, the offence took place on 14 December 2007 at a party. He wounded the victim with a glass after consuming alcohol. The victim sustained serious, complex and deep wounds to his face leaving him with permanent scarring and damaged muscle and nerve tissues.
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The Secretary of State issued a notice of liability to deportation to the Appellant in the light of his offending on 27 October 2009. The Secretary of State issued a notice of intention to revoke his refugee status and indefinite leave to remain on 31 March 2011. The Secretary of State issued a notice of intention to cease his refugee status on 23 September 2011. The Secretary of State made a decision to revoke his refugee status on 4 February 2013 and signed the deportation order on 28 May 2013.
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The Appellant appealed against the Secretary of State’s decision to the First-tier Tribunal on 19 June 2013. The First-tier appeal allowed his appeal by a decision promulgation on 15 November 2013. The Upper Tribunal, however, set aside that decision on 30 January 2014 and remitted the appeal for a fresh hearing. The First-tier Tribunal, following a fresh hearing, dismissed his appeal on all grounds on 23 January 2015. He had continued to maintain before the First-tier Tribunal that he was a citizen of Kosovo born on 1 December 1984 and was at risk of persecution. The appeal rights were exhausted on 17 June 2015 with the refusal by the Upper Tribunal of his application for permission to appeal. He, however, continued to reside in the United Kingdom and failed to report to the Secretary of State.
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The Appellant next came to the Secretary of State’s attention on 23 October 2018 in connection with a routine traffic stop. He was taken into immigration detention. He made written submissions relying on his private and family life on 21 November 2018 but shortly thereafter agreed to leave the United Kingdom disclosing his true Albanian identity. He left the United Kingdom to Albania voluntarily on 28 December 2018 but returned clandestinely in breach of the deportation order. He was arrested on 17 April 2020 with two different identity documents, one in the name of Mentor Marku with the date of birth of 1 December 1984 and another in name of Mentor Serban with the date of birth of 7 May 1981. The Secretary of State issued a notice of removal to him on 18 April 2020.
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The Appellant made written submissions to the Secretary of State on 17 September 2020 raising a human rights claim based on Article 8. The Secretary of State refused that claim and his associated application to revoke the deportation order on 22 January 2021. The Appellant appealed against the Secretary of State’s decision to the First-tier Tribunal on the same day contending that his removal from the United Kingdom would be incompatible with Article 8.
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The First-tier Tribunal heard the Appellant’s appeal from the Secretary of State’s decision on 3 September 2021. The Appellant relied on the relationship with his three British citizen children, namely, C1, born on 7 March 2005, C2, born on 27 February 2013 and C3, born on 12 April 2016. He stated that C1 lived with her mother, KL, and C2 and C3 lived with their mother, DS. He stated that he was no longer in a relationship with either KL or DL but helped them as to the upbringing of the children. He also referred to a fourth child in the evidence but made it clear that he had no parental relationship with that child. The First-tier Tribunal promulgated its decision on 21 October 2021. The First-tier Tribunal, in short, held that the impact of his deportation from the United Kingdom on the children would amount to very compelling circumstances. The First-tier Tribunal, on that basis, allowed the appeal and concluded that the Secretary of State’s decision was incompatible with Article 8.
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The First-tier Tribunal granted the Secretary of State permission to appeal to the Upper Tribunal on 26 November 2021. The Upper Tribunal heard the Secretary of State’s appeal on 16 May 2022. By a decision promulgated on 21 July 2022, the Upper Tribunal held that the First-tier Tribunal had erred in law in making its decision. The Upper Tribunal accordingly set aside the First-tier Tribunal’s decision and retained the underlying appeal for remaking of the decision. The Upper Tribunal preserved the findings made by the First-tier Tribunal as to the Appellant’s family life with the children and gave case management directions for filing of further evidence and listing of the appeal for a resumed hearing.
Resumed hearing
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We are grateful to Mr Peter Blackwood, who appeared for the Appellant, and Mr David Clarke, who appeared for the Secretary of State, for their assistance and able submissions at the resumed hearing.
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We commenced the resumed hearing by inviting Mr Blackwood to make submissions as to whether we should proceed with the resumed hearing or remit the underlying appeal to the First-tier Tribunal for a fresh hearing. The reason for this invitation was the Court of Appeal’s recent judgment in AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512 [2023] 4 WLR 12. The Court of Appeal in that judgment, which has now been considered by the Upper Tribunal in Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC), gave guidance as to the question of whether an appeal, following the decision to set aside the First-tier Tribunal’s decision, should be retained or remitted. Although, as we note above, the Upper Tribunal had previously decided to retain the underlying appeal for remaking of the decision, we were prepared to the consider the question afresh in the light of latest case-law. Mr Blackwood, however, made it clear that his preference was for the appeal to be retained at the Upper Tribunal. He accordingly invited us to proceed with the resumed hearing. We accepted that invitation with no objection from Mr Clarke. We agreed with Mr Blackwood that in all the circumstances, having regard to the potential loss of the two-tier decision making process, it was in accordance with the overriding objective and the practice statements issued by the Senior President of Tribunals to proceed with the resumed hearing.
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The documents before us included all the evidence that was adduced by their parties at the First-tier Tribunal, namely, the Appellant’s skeleton argument, appeal bundle, supplementary bundle and further submissions and the Secretary of State’s bundle and review. The Appellant provided a further bundle for the resumed hearing and written submissions drafted Mr Blackwood.
Mr Blackwood called the Appellant to give oral evidence. The Appellant adopted his witness statements of 8 June 2021 and 16 September 2022 in examination-in-chief. Mr Blackwood asked a few supplementary questions with no objection from Mr Clarke who then cross-examined the...
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