Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00169/2012

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 28 November 2012
On 21 June 2013

…………………………………

Before

MR JUSTICE UNDERHILL
UPPER TRIBUNAL JUDGE GLEESON

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and

WALTER WOODS
Respondent

Representation:

For the Appellant: Mr L Tarlow, Home Office Presenting Officer
For the Respondent: Miss Rebecca Trendell

DETERMINATION AND REASONS

1. This is an appeal by the Home Secretary against a decision of the First-tier Tribunal allowing the appeal of Mr Walter Woods against a deportation order. We will for convenience refer to Mr Woods as the appellant although he is of course the respondent before us.

2. The facts can be relatively shortly stated. The appellant is from Zimbabwe. He is of mixed race. He came to this country in 1998 at the age of 39 as a visitor. He was subsequently granted further leave to remain and in 2003 indefinite leave to remain on the basis of UK ancestry. His mother, who is now elderly, his four sisters and a brother are all resident in the UK. In 2001 he was diagnosed HIV positive. He has in fact serious symptoms of HIV infection. He is receiving active treatment but he is in poor health. He has not been able to work since 2005 and is on incapacity benefit. The evidence is that he is very close to all the members of his family to whom we have referred. He sees them very regularly and is dependent on them not only for emotional support but for care during the periods of illness which he has which are not infrequent as a result of his HIV infection. He also receives some financial support from them. At some point regrettably he developed a drug habit. In order to pay off a debt to his dealer he agreed to supply drugs on the dealer’s behalf. On 30 July 2010 he was sentenced at the Isleworth Crown Court having pleaded guilty on three counts of supplying Class A drugs, heroin and crack cocaine. He was sentenced to two years’ imprisonment. As the length of the sentence shows, he was regarded as a dealer only at the very lowest level and in relation to very small amounts. The judge explicitly accepted in his sentencing remarks that the appellant had got into dealing recently and as a result of pressure supplied by his supplier.

3. It is common ground that the appellant’s conviction means the Home Secretary was prima facie obliged to make a deportation order as a result of the terms of section 32 of the United Kingdom Border Act 2007. The only issue for her and for the Tribunal was whether deportation would be in breach of the appellant's Convention rights or of this country’s obligations under the Refugee Convention, so that the case fell under one limb or the other within exception (1) under section 33 of the Act. The Tribunal found that both limbs of the exception applied. We will consider its reasoning as to each in turn.

4. As to the asylum claim, the Tribunal rejected the appellant's case that he was at risk of persecution if he returned because of some political activity in the distant past. However it held, on the basis of the country guidance case of EM & Others [2011] UKUT 98 (IAC), that he would be at risk if he returned to the part of Zimbabwe from which he originally came, which is Guerru in the Midlands Province. At paragraph 189 of its judgment in that case the Tribunal found that, leaving aside the case of past ZANU activists, returnees to these areas would face a real risk of persecution because of a continuing risk of being required to demonstrate loyalty. In the light of the judgment of the Court of Appeal in RT (Zimbabwe) [2010] EWCA Civ 1285 it recognised that it is no answer to a loyalty challenge that if he returned he should be expected to mislead the enquirer as to where the loyalties lay. The Tribunal held that the appellant fell into that category, adding that the risk was greater because of his mixed race.
5. That, however, led to the question whether it would be reasonable to expect the appellant to relocate. The Tribunal quoted from paragraph 267 subparagraph (viii) of the same decision an observation to the effect that relocation to Harare was “realistic” but that a tribunal would still have to consider whether such relocation would be unreasonable or unduly harsh in any particular case. As to that it found at paragraph 30 of its determination.

“Here there are a number of factors that points towards it being unduly harsh for the appellant to relocate. The “socio economic circumstances” in which the appellant will find himself are likely to be unsatisfactory in the extreme. As we have already pointed out, his life is likely to be at best at a subsistence level as he will not be able to work. He will not be able to afford the drugs that he needs to keep alive in the long term and he will not have any support network which is necessary to him over and above the drugs if he is to keep alive. We conclude that it would be unduly harsh to expect the appellant to relocate. It follows that he is entitled to refugee status.”

The reference to findings already made refers to earlier paragraphs the details of which we need not set out here.

6. As for the human rights claim, which was based only on Article 8 of the Convention, the Tribunal found that the appellant enjoyed a family or private life in HaHHH
this country even though he did not live with his mother or any of his siblings and that that family life would be seriously interfered with if he were to be deported “because of his health ... bearing in mind the life that he will lead in Zimbabwe”. It expressly acknowledged the public interest in deporting foreign criminals, even those who, as it found was the case with the appellant, posed no real risk of reoffending. It referred to the well known decision in M (Kenya). But it nevertheless held that striking the necessary balance, deportation would be disproportionate. It directed itself in accordance with the general statements of principle in Razgar and Huang and it also reminded itself that a person can have significant Article 8 rights requiring protection even if he is an adult and lives alone, referring to the recent decision of this Tribunal in Ghising [2012] UKUT 00160 (IAT). It acknowledged that a balance was required between the appellant’s interests, as it put it, and the important public interest enshrined in Section 32 of the 2007 Act.

7. As regards the former, the essential points made by the Tribunal were that the appellant had lived in this country lawfully, and latterly with the benefit of indefinite leave to remain, for fourteen years; that all his family were here; that he had a very close relationship with them – it noted that no fewer than fourteen members of the family appeared to support him at the Tribunal; and, particularly, that the importance of that relationship to him was magnified by his health needs. By contrast, if he were deported to Zimbabwe he had no family and would have no support of any kind. We have already referred to its findings in that regard in connection with the issue of relocation.

8. As regards the public interest, as we have already said, the Tribunal correctly identified that this included not only the need for public protection but also the wider public interest recognised in N (Kenya). So far as the former is concerned, the Tribunal noted the mitigating circumstances relating to the offences for which he was convicted and that – for all that the supply of Class A drugs is always a very serious matter – his offending nevertheless fell at the very lowest end of that scale. It found in terms that there was a low risk of reoffending, noting that the appellant was no longer himself taking illegal drugs. It found that in the circumstances of the present case the appellant's Article 8 rights outweighed the public interest.

9. The Secretary of State appeals against both aspects of the Tribunal’s reasoning. So far as the asylum claim is concerned, there are various criticisms of the adequacy of the Tribunal's reasoning. Those criticisms seem to us to have some substance, although for the reasons we will shortly explain we have not heard submissions on them. But there is also the further problem that the Tribunal, as we have seen relied, on the country guidance in EM (Zimbabwe) which the Court of Appeal has recently held should not now be relied on.

10. If the outcome of this appeal were to turn on the finding that the appellant was entitled to refugee status we would have to consider quite carefully the present state of guidance in relation to returnees to Zimbabwe, and the issues are not ones, it seemed to us, that the parties were in a position to proceed on. However it would be sufficient to dispose of this appeal if the appellant's case based on Article 8 and the Tribunal's reasoning in support of that were sound. We canvassed with Miss Trendell for the appellant whether her client would in practice be prejudiced if the appeal were dismissed on the basis of that ground without our attempting to decide the question of refugee status for ourselves, and she acknowledged that there would be no practical prejudice to the appellant if we proceeded on that basis. We accordingly will say nothing more about that limb of the Tribunal's reasoning. We will focus only on the Article 8 ground.

11. So far as that is concerned, the Secretary of State in her grounds of appeal advances two points. The first is that the Tribunal failed adequately to distinguish between the appellant's private and family life. The second is that it “failed adequately to reason” the relevant parts of its decision, which are essentially paragraphs 37 and 39 where it carried out the relevant proportionality assessment. The particular defect to which the Secretary of State refers is that “there is no mention of whether the appellant pleaded guilty or otherwise assisted the Crown nor whether the appellant has accepted responsibility for his crimes or displayed understanding of the problems that such a finding poses to the fabric of society”.

12. So far as the former point is concerned, the distinction between family and private life may in some circumstances be important, but it does not seem to us that it is in the present case. The nature of the appellant's relationship with his mother and siblings is clearly of a kind which would engage Article 8, particularly having regard to the strong element of dependency as a result of his illness. Although the Tribunal did not in terms refer to the decision in Kugathas v the Secretary of State, it could well have done, as Mr Tarlow for the Home Office realistically accepted.

13. As for the latter ground, we can only say that we do not agree that the reasoning is inadequate. On the contrary, the Tribunal clearly acknowledged and put into the balance the strong public interest in preventing and deterring serious criminal offences. But it judged, for reasons which it gave, that in the circumstances of this case that interest was outweighed by the appellant's Article 8 rights. That assessment cannot said to be perverse and Mr Tarlow did not attempt to suggest otherwise. The particular points which it is said that the Tribunal failed expressly to mention did not seem out us to require specific mention in striking the balance in question. It is clear from the evidence before the Tribunal and recited by it that the appellant did in fact accept responsibility for his crimes and expressed remorse for them. Whether or not he “displayed understanding of the problems that such offending posed to the fabric of society” does not seem to us to be a point on which an express finding was needed. What matters was that the Tribunal found that he posed no real risk of reoffending.

14. For those reasons, and on that basis, the finding of the Tribunal that exception (1) under section 33 of the 2007 Act applied seems to us to be unimpeachable and the appeal is dismissed.

Signed Date

Mr Justice Underhill