Upper Tribunal (Immigration and asylum chamber), 2023-05-14, HU/15952/2018
| Appeal Number | HU/15952/2018 |
| Hearing Date | 02 February 2023 |
| Date | 14 May 2023 |
| Published date | 01 June 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: HU/15952/2018
|
IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
First-tier Tribunal No: HU/15952/2018 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On the 14 May 2023
Before
UPPER TRIBUNAL JUDGE KAMARA
Between
JAMIL ASSYNE HYDAR
(NO ANONYMITY ORDER MADE)
Appellant
and
Secretary of State for the Home Department
Respondent
Representation:
For the Appellant: Mr L Youssefian, counsel instructed by TTS Solicitors
For the Respondent: Ms S Cunha, Senior Home Office Presenting Officer
Heard at Field House on 2 February 2023
DECISION AND REASONS
Background
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This is the remaking of the decision and reasons in the appellant’s appeal against the respondent’s decision to deport him by virtue of section 32(5) of the UK Borders Act 2007, owing to the appellant being a foreign criminal, as defined under Section 117D of the Nationality, Immigration and Asylum Act 2002.
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The error of law decision of the Honourable Mrs Justice McGowan and Upper Tribunal Judge Blundell promulgated on 14 April 2020, is annexed to this decision and reasons.
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The appellant was born in Sierra Leone on 10 May 1976. He has British Protected Person status but was erroneously issued with a British Overseas Citizen passport which he used to enter the United Kingdom as a visitor on 6 June 1997. He applied for asylum three days after his arrival. That claim was refused on 6 October 1999, however the appellant was granted exceptional leave to remain, intitially for twelve months. That leave was extended in the same capacity until 6 October 2003. Thereafter, the appellant was granted indefinite leave to remain on 30 October 2003.
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The appellant has acquired a number of criminal convictions between 1998 and 2007. The earlier convictions were summary matters including various driving offences and minor assaults. On 18 December 2007, he was convicted of two counts of robbery and one count of attempted robbery and, following an appeal, he received a 6 year sentence of imprisonment.
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On 26 September 2009, the Secretary of State served the appellant with notice of liability to deportation, in response to which he sent a series of representations, on Article 8 grounds. The appellant was released from prison on parole on 22 December 2011 and held in immigration detention until February 2012. His licence expired on 8 October 2013.
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On 26 June 2013, the respondent wrote to the appellant to inform him of her intention to make a deportation order and seeking submissions from the appellant. He did not reply. The respondent refused the asylum claim on 16 October 2013. The deportation order was signed on 5 November 2013. The appellant appealed that decision, however the deportation order was withdrawn on 22 October 2014 because of concerns about the appellant’s nationality, it being said that he was a British Protected Person. The respondent wrote to the appellant in March, April and November 2016 as well as April 2017 requesting documentary evidence regarding his nationality. The appellant did not respond to any of those requests. On 24th January 2018, the respondent wrote to the appellant to inform him that she was considering deporting him. Ultimately, the decision to deport the appellant was served on him on 24 July 2018 and this is the decision which is the subject of this appeal.
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The appellant appealed the decision of to deport him and his appeal was allowed by First-tier Tribunal Judge Page in a decision promulgated on 19 August 2019. As indicated above, an Upper Tribunal set aside the decision of the First-tier Tribunal in its entirety for the reasons set out in the decision and reasons annexed. It suffices to say that the matter was adjourned to be remade before the Upper Tribunal with no findings of fact preserved.
The decision of UTJ Keith
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Upper Tribunal Judge Keith allowed the appellant’s appeal in a decision and reasons promulgated on 28 February 2022.
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Following an application by the Secretary of State for permission to appeal to the Court of Appeal, Judge Keith set aside his own decision on 14 July 2022. Following that, Judge Keith invited submissions from the appellant but ultimately declined to set aside his decision of 14 July 2022, by way of a further decision dated 24 August 2022. The outcome of the foregoing is that the appellant’s appeal is to be considered afresh and the decision remade, with the Upper Tribunal judge’s findings in relation to the appellant’s private life preserved in their entirety as they were unchallenged.
The Hearing
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The hearing was conducted as a hybrid hearing, with the appellant and both representatives attending in person, and the appellant’s sister (RH), and his former partner (EB) attending via videolink.
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Both representatives confirmed that the issue to be addressed was whether there were very compelling circumstances over and above those described in Exceptions 1 or 2, albeit there would be submissions as to the extent to which the appellant met the requirements of Exceptions 1 and 2.
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I heard oral evidence from the appellant and his witnesses as well as submissions from both representatives. In their submissions, the representatives relied on their respective skeleton arguments which had been prepared for the hearing before Judge Keith. At the end of the hearing, I indicated that the appeal would be allowed. I give my reasons below.
Legal Framework
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The appellant argues that his removal from the United Kingdom would be a breach of the United Kingdom's obligations under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The burden of proof is on the appellant to establish an interference with his rights under Article 8(1) ECHR and the standard of proof is a balance of probabilities. The burden is then upon the Secretary of State to establish to the same standard that the interference is justified under Article 8(2) ECHR.
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Section 32(4) of the UK Borders Act 2007 [‘the 2007 Act’] provides that “the deportation of a foreign criminal is conducive to the public good”. Sub-section 5 requires the Secretary of State to make a deportation order in respect of a “foreign criminal,” defined as a person who is not a British citizen and who is convicted in the UK of a criminal offence for which they are sentenced to a period of imprisonment of at least twelve months, unless it would be a breach of a person’s rights under the European Convention on Human Rights [‘ECHR’]. Foreign criminals are divided into categories which includes: those with sentences of between one and four years imprisonment (medium offenders) and those sentenced to four years or more (serious offenders).
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Part 5A of the 2002 Act was introduced by the Immigration Act 2014 with effect from 28 July 2014.
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When considering whether deportation is justified as an interference with a person’s right to respect for private life and family life under article 8(2) of the ECHR, section 117A(2) of the 2002 Act requires decision makers to have regard in all cases to the considerations listed in section 117B, and in cases concerning the deportation of foreign criminals to the considerations listed in section 117C.
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The relevant parts of section 117C of the 2002 Act, provides:
(1) The deportation of foreign criminals is in the public interest.
(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(3) In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C’s deportation unless Exception 1 or Exception 2 applies.
(4) Exception 1 applies where- (a) C has been lawfully resident in the United Kingdom for most of C’s life, (b) C is socially and culturally integrated in the United Kingdom, and there would be very significant obstacles to C’s integration into the country to which C is proposed to be deported.
(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh.
(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.
Discussion
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In reaching this decision, I have taken into consideration sections 117B and 117C of the 2002 Act, as amended as well as all the evidence and submissions, both oral and written. There was no dispute between the representatives as to the facts of the case. Indeed Ms Cunha made no challenge to the evidence of the appellant or his witnesses. The disagreement between the parties came down to whether the appellant met the requirements of Exceptions 1 and 2 and whether he had established that there were very compelling circumstances over and above those described in Exceptions 1 and 2.
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