Valentine Harverye v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Haddon-Cave,Lord Justice Hickinbottom,Lord Justice Irwin |
| Judgment Date | 21 December 2018 |
| Neutral Citation | [2018] EWCA Civ 2848 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2016/4013/AITRF, 4013(D)/FCS, 4013(B)/FC3, 4013(C)/FC3 |
| Date | 21 December 2018 |
[2018] EWCA Civ 2848
Lord Justice Irwin
Lord Justice Hickinbottom
and
Lord Justice Haddon-Cave
Case No: C5/2016/4013/AITRF, 4013(D)/FCS, 4013(B)/FC3, 4013(C)/FC3
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Hanson
DA/01738/2014
Royal Courts of Justice
Strand, London, WC2A 2LL
Stephanie Harrison QC and Lucy Mair (instructed by Paragon Law) for the Appellant
Julie Anderson (instructed by The Government Legal Department) for the Respondent
Hearing date: 27 November 2018
Judgment Approved
Introduction
In this case the Appellant challenges the decision of UTJ Hanson given on 26 August 2016, allowing the appeal of the Secretary of State from the decision of the First-tier Tribunal of 3 March 2015, with the effect of upholding the Order for the Appellant's deportation to Zimbabwe made on 21 August 2014. The background and procedural history are important for the substance of this appeal.
The essential point in issue is whether, on the facts of this case, a second decision to deport might properly be made; where the Appellant was a foreign criminal as defined by section 32(1) of the UK Borders Act 2007 (“the 2007 Act”) in respect of whom the Respondent had an obligation to make a deportation under section 32(5) of the 2007 Act, but where an exception under section 33 of the 2007 Act had been established in an earlier appeal. In such circumstances, is there a requirement for a material change in circumstances before a second decision may be taken? Was there such a material change here?
Background Facts
The facts of this case were well summarised by UTJ Hanson in his first determination of 17 July 2013, recited once more in his second determination of 26 August 2016:
“5. Mr Harverye is a citizen of Zimbabwe who was born on the 22 nd April 1991. He is of mixed race as are his mother and father. He arrived in the United Kingdom on the 18 th November 1998 as the dependant of his mother who had married a British citizen. He was granted Indefinite Leave to Remain on 29 th January 2001 although an application for naturalisation was refused on the 31 st May 2007 as a result of his personal conduct.
6. Mr Harverye has a criminal record which shows two offences against the person between 2008–2009, three theft and kindred offences between 2005 and 2008, one offence relating to the police/courts/prisons in 2009 and six miscellaneous offences between 2008–2009. He received his first reprimand/caution in 2004 for common assault. Details of those convictions are as follows:
…
8 th June 2009 Nottingham Crown Court – Causing grievous bodily harm. Offence committed on bail. Sixty-six months detention in a Young Offenders Institution.
7. It is as a result of the last offence, for which he received a five and a half year prison sentence that Mr Harverye was made the subject of a deportation order pursuant to UK Borders Act 2007. It was his appeal against the making of the automatic deportation order which was considered by the First-tier Tribunal.
8. The sentencing judge, HHJ Bennett, sitting at the Nottingham Crown Court noted that Mr Harverye was not of good character and his guilty plea but in relation to the offence stated:
“What you actually did, if you analyse it, in her own home, is you attacked [the victim]; you abused her, you mutilated her, you intimidated her and you humiliated her. All that over a long period of time. So although I am quite satisfied, as I have said to your counsel, you did not go there with the intention of carrying out this kind of attack, the fact is when you saw the opportunity after opportunity after opportunity you took it.
Twice you poured boiling water over her. One has only to look at the photographs to realise the extent of that and the consequence is she is scarred for life and had to undergo surgery. She will never get back what she had before you did that to her, so far as her body is concerned never mind the psychological damage. You used a melted plastic bottle and stuck it in her neck. That is absolutely awful. Then as if that was not bad enough, you humiliated her by trying to her to strip and dance in front of the group when she was injured in this terrible way and warned her not to go to the police and threatened her.
That is a list, I am afraid, of extremely aggravating factors.
The result is that if you had been convicted for doing that at the hands of a jury I would undoubtedly have given you 9 years in a Young Offenders Institute. As it is, with mitigation, I shall give you 5 1/2. So you get your full discount and six months off the balance of the mitigating features….. I can pass no less for something as horrific as this.”
9. Mr Harverye has admitted he was a drug dealer.
10. As a result of his conviction Mr Harverye was excluded from the protection of the Refugee Convention and it was found he had failed to rebut the presumption that he constituted a danger to the community. The finding of the First-tier Tribunal in this regard was not challenged on appeal.” (Determination 2013)
The first decision to deport was served on 5 October 2011. The Appellant successfully appealed this decision to the First-tier Tribunal, who upheld his claim under Article 3 of the European Court of Human Rights, in a determination of 22 February 2012 [“F-tT1”]. This was appealed by the Respondent to the Upper Tribunal (Immigration Appeals Chamber), resulting in the First Determination of UTJ Hanson [“UT1”].
In that decision, the Upper Tribunal rejected many of the arguments advanced by the Appellant. There was no issue that the Appellant was a “foreign criminal” and therefore no issue that the obligation to deport arose, unless a statutory exception precluded deportation. Then and thereafter, the case has concerned the application of an exception, based on the existence or otherwise of an Article 3 risk to the Appellant. The Upper Tribunal relied on the Country Guidance given in EM and Others (Returnees) Zimbabwe CG [2011] UKUT 98 (IAC), as refined by the Supreme Court decision in RT (Zimbabwe) [2012] UKSC 38, and on the guidance in CM Zimbabwe CG [2013] UKUT 59. UTJ Hanson rejected the claim that the Appellant would face an Article 3 risk on return at the airport, rejected the claim that the Appellant would be returned to Zimbabwe destitute, rejected any Article 8 claim based on either family life or private life, and rejected a claim that the Appellant would be stateless. However, he concluded that, because of the particular situation prevalent at the time, the Appellant would have to remain in Harare, and therefore concluded that an Article 3 risk was established.
The express basis of that decision is of importance. Judge Hanson emphasised that the Appellant had no political profile. However, he concluded that the Appellant would, at that time, likely be unable to move to Bulawayo, or to Matabeleland, where there were such family connections as he had. He would likely be constrained to remain in Harare and, although he would not be destitute, his limited means would be likely to require him to live in a cheaper “high density” area of Harare. Judge Hanson analysed the consequences of this as follows:
“55. It is likely that his limited resources will require him to seek lodgings in a high density area where housing is cheaper but such areas in Harare were considered in CM the findings in EM (sic) where it was found that whilst the socio-economic situation in high-density areas is more challenging, in general a person without ZANU-PF connections will not face significant problems there (including a “loyalty test”), unless he or she has a significant MDC profile, which might cause him or her to feature on a list of those targeted for harassment, or would otherwise engage in political activities likely to attract the adverse attention of ZANU-PF, or would be reasonably likely to engage in such activities, but for a fear of thereby coming to the adverse attention of ZANU-PF. Mr Harverye has no such significant profile but his case must be considered at the date of hearing, when the elections are said to be imminent in Zimbabwe. In this regards Dr Kibble refers to the constitutional changes and since the hearing the Constitutional Court in Zimbabwe has rejected a joint application by the President and Prime Minister in Zimbabwe to delay the elections. They must therefore occur before the end of July 2013.
…
56. If Mr Harverye was to be challenged in other than English he is unlikely to understand what he is being asked and if this is a challenge to demonstrate loyalty, which he will not be able to do, he is at risk of beatings and ill-treatment. The fact he has no ZANU-PF party card and is unlikely to know the slogans and constantly repeated radio jingles means it will be difficult if not impossible for him to prove loyalty. Dr Jeater refers to the unemployed joining the ZANU-PF militia but she also states that orders are given in the vernacular languages and such groups have a reputation for beating and torturing their own members as well as other citizens [para 3.3, page 57 A's bundle].
57. The Tribunal in CM also refers to the Chipangano. This group has been described as ‘a brutal band of thugs formed by Zanu (PF) in the 1980s and now running a brazen murder, violence and extortion racket that started as a hit squad for the party but which has become a lucrative business’. An article broadcast on SW Africa Radio on 13 th April 2012 reported that the violent ZANU PF youth gang that has terrorised residents of Mbare suburb in Harare has reportedly started campaigning for the party, forcing innocent civilians to reveal their personal details and ordering them to vote for Robert Mugabe in the next...
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