Upper Tribunal (Immigration and asylum chamber), 2023-10-24, UI-2022-003389
| Appeal Number | UI-2022-003389 |
| Hearing Date | 04 September 2023 |
| Date | 24 October 2023 |
| Published date | 08 November 2023 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Case No: UI-2022-003389
First-tier Tribunal No: HU/50003/2020
IA/00004/2020
|
IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2022-003389 First-tier Tribunal No: HU/50003/2020 IA/00004/2020 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On the 24 October 2023
Before
UPPER TRIBUNAL JUDGE HANSON
Between
JL
(ANONYMITY ORDER MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms S Khan instructed by Parker Rhodes, Solicitors.
For the Respondent: Ms Z Young, a Senior Home Office Presenting Officer
Heard at Phoenix House (Bradford) on 4 September 2023
Order Regarding Anonymity
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, [the appellant] (and/or any member of his family, expert, witness or other person the Tribunal considers should not be identified) is 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/or other person). Failure to comply with this order could amount to a contempt of court.
DECISION AND REASONS
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In a determination promulgated on 24 February 2023 the Upper Tribunal set aside the decision of a judge of the First-tier Tribunal. The matter comes before me today for the purposes of enabling the Upper Tribunal to substitute a decision to either allow or dismiss the appeal.
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The appellant is a male citizen of the Democratic Republic of Congo (DRC) born on 5 October 1994. He arrived in the UK as an unaccompanied minor on 19 October 2010 and claimed asylum, which was refused, although he was granted discretionary leave to remain until 4 May 2012. Attempts to trace his father in the DRC were unsuccessful leading to his being granted refugee status with leave to remain on 19 May 2012 valid to 14 May 2017.
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The Secretary of State in a letter dated 29 January 2019 set out the reasons why she revoked the appellant’s refugee status and, in a letter dated 1 May 2020, refused his human rights claim.
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The reason for the grant of refugee status is set out in a Home Office Minutes dated 12 May 2012 in the following terms:
“Having taken into account the prevailing conditions for unaccompanied children in the DRC and the applicant’s own profile it is considered that there is a reasonable likelihood that if returned to the DRC he would be at real risk of treatment contrary to Article 3 of the ECHR. As his vulnerability to such treatment arises from his age and lack of support it is considered that he falls into a particular social group, namely street children in the DRC (see LQ Afghanistan). Therefore it is considered that the applicant qualifies for a grant of Asylum.”
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The error of law decision dispelled any suggestion that the appellant had been granted refugee status on the basis of his having an adverse political profile in the DRC giving rise to an ongoing risk of persecution and/or ill-treatment.
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The appellant came to the attention of the Secretary of State following his conviction at the Sheffield Combined Court Centre. In his sentencing remarks HHJ Moore stated:
JL and MHZ, this was the second game that week between the complainant’s soccer team and the defendant’s soccer team in the local Sheffield leagues. Both games had plenty of tension and the result was important to both teams. The complainant’s team won the match and immediately, upon the final whistle, almost all of the players squared up to each other. This was calmed down by the referee and the two coaches and everybody moved away. In other words, it was all over. No harm had been done and the heat of the moment was finished.
Then, suddenly, the first defendant JL came out, saw the complainant standing on his own and delivered a hard punch to his jaw. That caused total dislocation which had to be plated and wired, requiring six weeks of a liquid diet and leaving the 22-year-old with a loss of confidence and some permanent numbness. In guidelines terms this was a Category 2 s.20 offence.
Whilst the complainant was being helped up and was therefore in a state of being particularly vulnerable because of his immediate personal circumstances - one of the definitive requirements of greater harm in the s.47 sentencing guidelines - the second defendant MHZ attacked him with a sharp pointed metal on the end of a football pump into the top of his head, causing a puncture wound. By reason of the use of the weapon and him being particularly vulnerable, this was therefore a Category 1 assault occasioning actual bodily harm. In each case I am satisfied, so that I am sure, that the offence was so serious that only immediate custodial sentences can be justified.
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The appellant was sentenced to a period of 23 ½ months imprisonment reduced to 15 months on appeal by the Court of Appeal Criminal Division. The Secretary of State seeks to deport the appellant from the United Kingdom as a result of this conviction.
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In the error of law decision it was directed that the First-tier Tribunal’s findings in relation to Article 8 ECHR being engaged on the basis of family life are to be preserved findings, as shall be the appellant’s criminal and immigration history.
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The Secretary of State, in an email submitted by Mr Young on 6 July 2023, confirmed that it was the Secretary of State’s intention to maintain all grounds of challenge apart from it being accepted it would be unduly harsh for the children to live in the DRC, but not accepting it will be unduly harsh for the children to remain in the United Kingdom with their mother who is their primary carer, without the appellant.
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The appellant has provided witness statements, his original statement of 16 June 2021 and a further updated statement dated 18 April 2023, together with a statement from his witness MLW, a letter from a doctor, various other related documents and country information.
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The appellant also relies upon a Family Circumstances Report dated 24th July 2023 prepared by Lynn Coates, an Independent Social Worker.
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It is noted in the report that the appellant, MLW was born on 1 January 1993, LLL was born on 18 October 2018 (now aged 5), and AML born on 3 November 2021 (now aged 23 months).
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The appellant and MLW are the parents of LLL and AML. They met in 2013 at the church they attended and the report states they live together in a two bedroom property.
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MLW advised Lynn Coates that they are engaged and plan to marry however due to their financial situation, as a result the appellant not being able to work, they have delayed their plans to marry, although hope to be able to do so once his immigration status is resolved. MLW confirmed that due to uncertainty and the pressure of the couple’s situation she and the appellant separated for a short period in November 2022 but reunited in March 2023 although continued to have daily contact during the period of separation with the appellant maintaining his role with the two children. Both parents felt that arrangement was important for children’s stability and sense of security.
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Having provided background on each of the children Lyn Coates writes in the “Conclusion and recommendation” section of the report:
“LLL and AML have stability and security as a result of them being in a stable, safe caring home environment within UK society. They are established within the UK society and culture and LLL is to begin primary school education with her friendship group. Information accessed as part of this assessment would indicate that these children have a positive attachment to their father, and although they are too young to express their views, I am confident if able they would desire their father to remain living with them in the UK.
Although I am not a country expert, I am aware that Congo is deemed as one of the poorest countries. UNICEF information states that “The lack of formal economic opportunities, combined with entrenched political conflicts and instabilities, as well as high rates of malnutrition, illness and poor education makes the Congo one of the hardest places on earth to raise a family”. This in my professional opinion raises significant concerns for the welfare of these children should they reside in Congo.
Stability and security are two critical elements of a child’s needs, and their social and emotional developmental opportunities have significant implications on their current and future growth in functioning, confidence, resilience, ability to trust and withstand the pressure and challenges of life. In depriving the right to these essentials, children’s mental and emotional well-being can be at best compromised and, at worst, cause significant harm.
There is significant literature that pertains to the importance of fathers in their children’s life. One such article written by The Children and Family Court Advisory and Support Service (CAFCASS) states ‘All children, under Article 9 of the United Nations Convention on the Rights of a Child, have the right to have their views respected and to have their best interests considered at all times. They also...
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