Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00194/2009

THE IMMIGRATION ACTS

Heard at Nottingham Magistrates Court
Determination Promulgated
on 21st May 2013
On 13th June 2013

Before

UPPER TRIBUNAL JUDGE HANSON

Between

MIR ABUTORAB ASGHARI
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr I Macdonald QC instructed by Appleby Shaw
For the Respondent: Mr J McGirr Senior Home Office Presenting Officer.

DETERMINATION AND REASONS

1. On the 15th December 2009 a panel of what is now the First-tier Tribunal (hereinafter referred to as ‘the Panel’) promulgated a determination in which they allowed the appellants appeal on Humanitarian protection and Articles 3 and 8 ECHR grounds against the order for Mr Asghari’s deportation from the United Kingdom made pursuant to section 32 (5) UK Borders Act 2007.

2. The Secretary of State sought permission to appeal which was granted by Upper Tribunal Judge Ward on 12th January 2010. The case was listed for an Initial hearing to enable the Upper Tribunal to consider whether the determination should be set aside for legal error and, if so, whether it can be remade without the need for further oral evidence. On 18th November 2010 Upper Tribunal Judge Waumsley heard submissions from Mr Macdonald and Mr Tufan on behalf of the Secretary of State. In a determination and reasons document dated 18th July 2012 Judge Waumsley found there was no appeal before him by Mr Asghari against the depravation of his refugee status and that this was therefore not an issue before him. [5]. It is noted there had been no cross-appeal by the appellant in relation to the Panel’s disposal of his asylum appeal which therefore remains unchallenged. In relation to the remaining issues Judge Waumsley found, having set aside the Panel’s decision on the humanitarian protection ground:

26. I have little hesitation in concluding that the appeal on humanitarian protection grounds should be dismissed. I reach that conclusion for two reasons. The first is that I am not persuaded that the appellant has shown there would be a real risk that he would suffer serious harm on return to Afghanistan, a country he left as a boy some 30 years ago. In so concluding, I have placed reliance on the current country guidance authority relating to the issue in the form of the determination of this Tribunal in AK (Article 15 (c)) Afghanistan CG [2012] UKUT 00163 (IAC).

27. My second reason is that I am satisfied that this appellant is properly excluded from the right to claim humanitarian protection because, as his past conduct clearly shows, there are serious reasons for considering that he constitutes a danger to the community or to the security of the United Kingdom. His appeal on humanitarian protection grounds is therefore dismissed.

28. Turning now to his appeal on human rights grounds under Article 3 of the Human Rights Convention, that is a claim which, on the facts of the appellant’s case stands or falls with his claim for humanitarian protection. Although exclusions from the right to protection has no relevance to a claim under Article 3, nevertheless for the reasons which are set out above, I am not persuaded that the appellant has shown that there are substantial grounds for believing that he would be at real risk of being subjected to treatment prohibited by Article 3 if he were to be returned to Afghanistan. His appeal under Article 3 therefore also stands to be dismissed.

3. In relation to the Article 8 ECHR issue Judge Waumsley found there was insufficient evidence before him to enable him to substitute his own decision on the Article 8 claim and so he limited his intervention to setting aside the Panel’s decision to allow the appeal under Article 8 and adjourned the hearing to enable further evidence to be called and a conclusion reached in light of the current position. It is for the purposes of this hearing that the matter comes before me.

Background

4. The appellant was born on 17th January 1970 and is a national of Afghanistan. It is said he is from a wealthy Shia family who were forced to flee Afghanistan. A letter from the Office for the Representative in the United Kingdom of the UNHCR, dated 3rd December 1986, relating to a decision by the Home Office to accept a named individual under the ‘Ten or More Plan’, refers to the appellant’s father. It is said he was originally a merchant who travelled to various European countries between 1964 and 1980. On returning to Iran, after seeking private medical treatment in Germany, he discovered he would be in danger if he were to be returned to Afghanistan and so he and his family remained in Iran, where he was recognised as a refugee under UNHCR’s mandate. The family were eventually permitted to enter the United Kingdom and their status transferred.

5. On 15th July 1988 the appellant arrived in the United Kingdom to join his family and on the 22nd August 1992 was granted refugee status too. He was granted indefinite leave to remain on 22nd August 1992 although an application for naturalisation as a British Citizen was refused on 25th February 2003, on the basis of his convictions/character.

6. In 1992 the appellant married Simin Zerabi. They have two children, Zahira born on the 14th August 1994 and Sayeed born on the 25th June 2001. They are now divorced.

7. The appellant has two cautions for violent offences on 11th June 1994 and 7th October 1997.

8. On 9th December 1997 the appellant received a 12 month conditional discharge at Barnett Magistrates Court for an offence of using threatening, abusive, insulting words or behaviour with the intent to cause fear or provocation of violence on 12th July 1997.

9. On 11th November 1999 he was convicted at Birmingham Magistrates Court of common assault on 11th October 1999 for which he was fined £100 and ordered to pay compensation to his victim of £50.00 and costs.

10. On 18th July 2002, at Birmingham Crown Court, he was convicted of Affray on 29th October 2001 for which he received a Community Rehabilitation Order of 12 months, a Community Punishment Order of 80 hours, and was ordered to pay costs.

11. On 10th February 2004 the appellant was convicted at Birmingham Magistrates Court of Battery on 27th December 2003 for which he was sentenced to a Community Rehabilitation Order of 24 months and ordered to attend programmes as directed, with an attendance not exceeding 60 days, and ordered to pay compensation and costs.

12. On 22nd August 2006 the appellant was convicted at West Hertfordshire Magistrates Court of assault on a Constable on 21st December 2005 for which he was imprisoned for eight weeks.

13. On 6th November 2006 the appellant was convicted at St Albans Crown Court of grievous bodily harm on 2nd July 2006 for which he was imprisoned for 32 months with an extension to his period of licence of 28 months.

14. On 1st November 2007 the appellant was notified of his liability to be deported and on 28th November 2007 served with notice of intention to exclude him from refugee protection under the provisions of section 72 Nationality, Immigration and Asylum Act 2002. Following an interview with the appellant on 22nd August 2008 he revealed he already had refugee status and so on 22nd October 2008 the Secretary of State served him with notice of cessation of such status.

15. On 14th November 2008 notice of liability to automatic deportation was served (section 32(5) UK Borders Act 2007) and on 23rd March 2009 he was served with notice of detention under immigration powers. The deportation order was signed on the 24th March 2009. It was the appeal against that order which came before the Panel and thereafter Judge Waumsley.

16. Notwithstanding the fact the appeal process against deportation was ongoing, on 17th July 2012 at St Albans Crown Court, the appellant was convicted of sexual assault – intentionally touching a female – no penetration - on 25th April 2012 contrary to section 3 Sexual Offences Act 2003 for which he was sentenced to 4 years imprisonment, an extension of his period of licence of six years and was ordered to be the subject of a sex offenders notice indefinitely.

17. He therefore has two cautions, three convictions for offences against the person, two of public disorder, one relating to police/courts/prisons and one sexual offence between 9th December 1997 and 17th July 2012.

18. The conviction on 11th September 2006 was for inflicting grievous bodily harm on his former wife. In her sentencing remarks Her Honour Judge Catterson stated:

You are 36 years of age now. You pleaded guilty on 11 September of this year at the plea and case management hearing, that is to say at the first opportunity, to the offence of inflicting grievous bodily harm contrary to section 20 of the Offences Against the Persons Act on your estranged wife Simin Zerabi (?). That is the second count of the indictment. The prosecution made it clear that they were content not to pursue Count 1 alleging false imprisonment to trial, it having been made clear on your behalf on 11 September that your plea to the offence of inflicting grievous bodily harm was on a full facts basis, as disclosed in the complainant’s video interviews with the police. That has been confirmed on your behalf by your learned counsel Mr Griffiths at the outset of his mitigation on your behalf last Thursday.

This offence was committed by you on Sunday, 2nd July. You and your wife of 12 years have been estranged, living apart for a couple of years. Your children, a girl of 11 and the boy of five, live with her. On the day in question you were visiting their home, having been permitted to stay over, but separately. In the late afternoon you and your wife were in the kitchen, the children playing in the back garden. An argument developed between you and your wife about you taking your daughter to town. You persisted in doing karate type movements in front of your wife, close enough to come into contact with her, despite her making it very clear that she wanted you to stop. When she then to reinforce her objections hit your hand with a plastic tray you retaliated. There was, it seems to me, a relatively brief exchange of blows between you. You got the better of her, since you were able to restrain her -- since you, as I say, were able to restrain her by tying her hands and legs with a washing line which had been left about the house, and you slapped her face in response to her screams. However, you did not tie her up particularly tightly and her continued screaming seems to have persuaded you to untie her. Had matters ended there the incident would have been relatively minor.

You went upstairs to take a shower and a verbal argument continued between the two of you and you spilt the water out, as she thought deliberately to provoke her. In that you succeeded, for she picked up a screwdriver, telling you not to. When you got out of the shower you proceeded to hit her with the screwdriver and with the handle and tube of a vacuum cleaner kept in a bedroom upstairs. When she escaped downstairs to make a 999 call to the police you broke the telephone. Once again you tied her hands and legs. She was at pains in her videoed interview a few days later to indicate that you did not tie her up very tightly this time either, but it is noteworthy that amongst her considerable injuries noted by the casualty doctor that night was bruising of both wrists and ankles. Having tied her up this second time, you continued to hit her, trying to stifle her screams by gagging her it seems with a sock stuffed into her mouth and by slapping her face.

The first policeman on the scene in response to the abandoned 999 call could hear her screaming, but was at first unable to gain entry at the front door. He found your five year old son in the back in some distress, apparently thinking that you had locked the door, though in her interviews I note that your wife has accepted locking the doors, seemingly out of habit. When you did let the policeman in at the front door your wife was to be seen on the stairs behind you in a state of great distress and as was discovered covered in bruises. A pair of socks was found tied around her neck.

The full extent of her injuries is set out in the doctor's statement. She had bruises to her left cheek and below her right eye, on different parts of her back, on her upper left arm and, as I have said, on both her wrists and both her ankles and both her elbows as well. In addition, she had a one centimetre cut underneath her tongue. Whilst at the hospital she collapsed and blood was found in her urine. Fortunately, as a CT scan showed, there was no damage to her kidneys, but she had fractures on her left side through the transverse processes of two of her lumbar vertebrae. He refers to those at page 2 in medical shorthand as L2 and L3. They were, I think, wrongly opened to me as fractures of the wrists ……. Your actions in doing so were as cowardly as they were criminal.

19. HHJ Catterson noted the appellant’s immigration history and the fact the family fled their home in Afghanistan before the advancing Russian army to Iran and were later forced to flee from Iran as a result of the Iran/Iraq war. The appellant returned to Afghanistan to marry after which his wife joined him in the United Kingdom. It is noted that the appellant has a history of depression which is likely to have been exasperated or caused by the fact he had not worked for many years. It was accepted the appellant has no command of English and lived in circumstances that led him to be somewhat isolated and marginalised. He suffers a lack of adequate literacy and numeracy skills even in his first language.

20. HHJ Catterson also noted the appellant has a not insignificant history of offending and refers to the offending history I have set out above. The offence for which he was convicted at Birmingham Crown Court and made subject of a community rehabilitation order for 12 months and ordered to undertake 80 hours community punishment arose when he took exception to a distant female relative marrying an English man. It is said the appellant telephoned the home of her parents making threats to the mother to rape and kill her. He threatened to kill the father in a second telephone call taken by him and then went to their home threatening the parents once again to rape the mother and kill the father. When the daughter and her husband arrived he approached them, shouting threats and punched the young woman in the face and struck somebody with a stick. He was then restrained until the police arrived.

21. HHJ Catterson notes that the second community rehabilitation order imposed on 10th February 2004 for the offence of battery related to an incident in which during the course of an argument with his wife he threw a clock at her which missed her but struck their nine-year-old daughter.

22. The offence of assaulting a police officer on 21st December 2005 occurred when he kicked the knee of a police officer who had been called to their house and who had arrested him.

23. Later in her sentencing remarks [R’s bundle C8] HHJ Catterson is recorded as having stated:

In my judgement your criminal record shows not simply a re-occurrence of violence, but an emerging pattern of violence in a domestic context when your own perhaps rather rigid thinking, or at any rate when you are subject to challenge. This offence represents a considerable escalation in the seriousness of your offending.

24. Shortly thereafter it is stated:

In my judgement there is a strong likelihood of your reoffending in domestic circumstances where you feel your will has been thwarted or your status undermined. To that extent I concur with the assessment in the pre-sentence report that there is a medium to high risk of you being re-convicted.

…… I have reached the conclusion that there is here a real and substantial risk that if and when you reoffend violently you will once again cause really serious harm. I judge the risk to be an important risk which it is not right to ignore. In short I have come in the end the clear view that it is a significant risk.

25. As a result of the above an extended sentence was imposed.

26. In her sentencing remarks HHJ Catterson noted the report of the psychiatrist tendered on the appellant's behalf and that the appellant expressed to the psychiatrist feelings as to the effect on his honour of his current marital situation although it did not appear to the Judge that the shame which that occasioned on him was matched by any genuine remorse for his own violent actions. It was also found that his aspiration to live in the family home with his wife and children were likely to be unrealistic and that he has limited insight and, as the psychiatrist noted, difficulty taking ownership of his aggressive actions. The sentencing judge noted characteristics including poor anger management and self-control and that it was his behaviour and his ability or otherwise to control his behaviour in what may be volatile and emotional circumstances which concerned the court.

27. What the above demonstrates is that although the appellant received an appropriate sentence for the offence for which he was convicted, with the additional safety net of an extended licence period, it did not deal with the reasons why the appellant offended and proved not to be a sufficient deterrent to him, as a result of which the appellant found himself again before St Albans Crown Court on 17th July 2012 for sentencing in relation to the recent sexual offence.

28. In his sentencing remarks His Honour Judge Plumstead noted the appellant admitted an attack which involved running into a young woman, 25 years of age, in the evening in April 2012 on his bicycle. It is said that having collided with her the appellant then "launched himself on her" kissing her touching her body in a sustained physical assault. His efforts were concentrated on her breasts and her vagina. She was terrified and screamed for help. Fortunately, help did arrive.

29. HHJ Plumstead notes that, in short, the nightmare of any woman who makes her way about the streets on her own, or the nightmare of anyone who cares for a woman who has to make her way around the streets alone, is a sudden violent and persistent attack. It is also noted in the sentencing remarks that the nature of the attack’s persistence is best summarised by the fact the appellant had to be physically removed from his attack upon this young woman and that it took three or possibly four passers-by to turn him away from her. It is noted one of those passers-by described the victim’s humiliation in a picturesque way, saying the appellant was doing to her what a dog does in humping the leg of an individual.

30. It is noted in his favour the appellant pleaded guilty at the earliest opportunity but it is also noted he seems to have little understanding of what he has done or possibly a degree of minimisation and evasion for what he has done. It was not accepted that the appellant had been given drugs which affected his way of thinking and although it was noted he had been drinking it was found drink was not the cause of what had happened but a disinhibiting factor.

31. HHJ Plumstead too noted the appellant has a long history of repeated violent offending and that the violence, overall, has been escalating. It is noted that the last conviction for a section 20 offence on a guilty plea resulted in a very long sentence but one not surprising considering the fact of him having bound his wife and then beaten her with a variety of makeshift weapons. It is stated that has overtones of dangerousness about it.

32. The sentencing judge found the author of the Pre-Sentence Report correct in assessing the appellant as being somebody who poses a higher risk of serious harm to adult females. The risk is likely to take the form of sexual assault by touching and rape. It is stated in the sentencing remarks that the victim suffered serious harm and in the Judge's opinion the appellant is capable of worse.

33. HHJ Plumstead, at page 4 para F, stated:

In those circumstances I find him to be a dangerous offender. I ask myself what is the correct sentence, allowing for a plea of guilty in terms of a custodial period. I have determined that the custodial period in his case does exceed four years.

So, the sentence of the court is an extended sentence of ten years imprisonment, being a four year custodial period with a six-year extended licence to follow. That means that Mr Asghari will be released after serving two years, subject to licence not only until the end of his sentence of four years, but six years thereafter. I regard him as a real risk and until and unless he comes to terms with whatever it is in him that drove him to this extraordinary and violent attack, he will require considerable supervision and, as I say, represents a danger.

34. It was also noted that, in part, an underlying concern in relation to the appellant's offending is a lack of understanding of what the proper normal relationship between men and women should be which is a concept he told the probation officer he did not understand. The Judge stated that his past very violent behaviour and the most recent violent sexual attack led him to conclude that he did not understand how men and women should behave in relation to each other.

Discussion

35. Mr Macdonald raised the issue of Mr Asghari’s status as a refugee but, as Judge Waumsley noted, there was no appeal against the Panel’s decision in favour of the Secretary of State on this issue. Article 1C of the Refugee Convention sets out the circumstances in which the Refugee Convention will cease to apply to a refugee. Under Article 1C(5) the Convention ceases to apply to a refugee where the circumstances in connection with which he has been recognised as a refugee have ceased to exist although there is a proviso where there are compelling reasons, arising out of his previous persecution, for refusing to avail himself of the protection of his country. The Secretary of State’s letter dated 22nd October 2008 explains why changes in Afghanistan represent a sufficient change of a significant and non temporary nature. These are sustainable conclusions on the facts.

36. This appeal is limited to considering Article 8 ECHR only as it has not been shown his is able to succeed under the Immigration Rules.

37. The automatic deport order was made after Mr Asghari’s grievous bodily harm (GBH) conviction but before the conviction for the latest sexual offence.

38. The UK Borders Act 2007 now mandates that in certain circumstances the deportation of a foreign criminal is deemed to be conducive to the public good and a deportation order should be made in respect of a foreign criminal. The provisions define a foreign criminal and section 32(4) then states that “deportation of a foreign criminal as defined is conducive to the public good”. The Secretary of State for the Home Department has a duty to make a deportation order against a foreign criminal who does not fall into one of the exceptions in section 33. The exception in section 33 relied upon by Mr Asghari is that which arises where deportation would breach the Refugee Convention or the ECHR.

39. In Masih (deportation – public interest – basic principles) Pakistan [2012] UKUT 00046(IAC) the Tribunal said that so long as account is taken of the following basic principles, there is at present no need for further citation of authority on the public interest side of the balancing exercise. The following basic principles can be derived from the present case law concerning the issue of the public interest in relation to the deportation of foreign criminals: (i) In a case of automatic deportation, full account must be taken of the strong public interest in removing foreign citizens convicted of serious offences, which lies not only in the prevention of further offences on the part of the individual concerned, but in deterring others from committing them in the first place. (ii) Deportation of foreign criminals expresses society’s condemnation of serious criminal activity and promotes public confidence in the treatment of foreign citizens who have committed them. (iii) The starting-point for assessing the facts of the offence of which an individual has been committed, and their effect on others, and on the public as a whole, must be the view taken by the sentencing judge. (iv) The appeal has to be dealt with on the basis of the situation at the date of the hearing. (v) Full account should also be taken of any developments since sentence was passed, for example the result of any disciplinary adjudications in prison or detention, or any OASys or licence report.

40. I have referred to the two sets of sentencing remarks above as both offences were mentioned during the course of the hearing and submissions made upon the same. On behalf of the appellant Mr Macdonald accepted the serious nature of his client’s offending but submitted that his removal is not a proportionate response.

41. On Mr Asghari’s behalf I have received a number of written statements and heard oral evidence from his younger brother Dr Asghari. In his statement dated 21st March 2013 Dr Asghari stated three of his brothers live in the UK, including the appellant. He states the appellant has lived in the UK for twenty five years and never returned to Afghanistan during that time, although I note he returned to marry according to the sentencing remarks of HHJ Catterson – see para 19 above.

42. Dr Asghari states they are from a very old, distinguished, and wealthy Shia family from Kabul where they owned substantial property. It is said the family were targeted by fundamentalist Sunni’s and non believers in the communist party. As a result, when the Russians invaded the country, they were forced to flee. After the fall of the communist regime they discovered their properties had been ransacked and their land seized and lost. Dr Asghari and another brother returned to Afghanistan in 2001 to see if property could be salvaged but they were advised to leave as they were in danger and so they left Afghanistan. In 2009 Dr Asghari returned but claims to have received a different threat in a phone call and message as a result of which, within three days of his arrival, he returned to the UK.

43. Dr Asghari claims the appellant’s position will be worse in that he will be recognised as a member of the family but have no protection and no means of exiting. He claims the Sunni will revile him and there shall be no protection from the government. It is also said he is vulnerable with low self esteem and IQ without the ability to support himself and in need of constant support.

44. Dr Asghari argues the appellant has established a life in the UK and maintains indirect contact with his son. Dr Asghari stated he has provided his brother with emotional and financial support and that following his release from prison following the GBH conviction he was getting on well whilst staying with him and his family in Poole, although he had to relocate to Hertfordshire where he became lonely and depressed and committed the sexual offence.

45. Dr Asghari claims the appellant is remorseful and ashamed of what he did and claims he can be changed with the support and guidance he is able to give to his brother. Dr Asghari refers to support he has provided such as funding the appellant’s legal costs and in his oral evidence to spending around £100,000 to date. He also says that if the appellant is permitted to remain he will buy a family restaurant for him to run and keep busy under his supervision.

46. It is not accepted by the Secretary of State that Mr Asghari has family life recognised by Article 8 with his brother. In the case of Kugathas [2003] INLR 170 the Court of Appeal said that, in order to establish family life, it is necessary to show that there is a real committed or effective support or relationship between the family members and the normal emotional ties between a mother and an adult son would not, without more, be enough.

47. In contrast, in AA v United Kingdom (Application no. 8000/08) ECtHR (Fourth Section) (October 2011), the Tribunal was not persuaded that the Applicant had a family life noting that he was an adult and that his relationships with family were not exceptional or beyond the norm. The ECtHR held that Strasbourg jurisprudence tended to suggest that the Applicant, a young adult who resided with his mother and had not yet founded a family of his own, could be regarded as having “family life” for the purposes of Article 8(1). However, it was not necessary to decide this. As Article 8 protected the right to establish and develop relationships with other human beings and could embrace aspects of an individual’s social identity, it had to be accepted that the totality of social ties between settled migrants and the community in which they were living constituted part of the concept of private life within the meaning of Article 8. In practice the factors to be examined when assessing proportionality of the deportation measure were the same regardless of whether family or private life was engaged (paras 46 – 49).

48. Although the date of decision was some time ago in MM (Article 8 – family life – dependency) Zambia [2007] UKAIT 00040 the Tribunal said that in the context of an in-country appeal, assessment of the facts relating to private and family life within the meaning of Article 8(1) of the ECHR has to be made as at the date of hearing, not the date of decision. However, that assessment is one which has to be made in the round, taking account of past, present and likely future circumstances. The fact that an appellant is economically dependent on adult children whilst in the United Kingdom under immigration conditions which prevent her from working is not determinative of the question of whether she is in a position of real dependency.

49. In Boultif v Switzerland [2001] ECHR 54273, as confirmed by Uner v the Netherlands [2007] Imm AR 303, the Court said that in order to assess whether an expulsion measure was necessary in a democratic society and proportionate to the legitimate aim pursued, the following criteria had to be considered.

(i) The nature and the seriousness of the offence committed by the Appellant;
(ii) The length of the Appellant’s stay in the country from which he or she was to be expelled;
(iii) The time that had elapsed since the offence was committed and the claimant’s conduct during that period.
(iv) The nationalities of the various parties concerned;
(v) The Appellant’s family situation, such as length of marriage and other factors expressing the effectiveness of the Appellant’s family life;
(vi) Whether the spouse knew about the offence at the time he or she entered into the family relationship;
(vii) Whether there are children in the marriage and if so their ages;
(viii) The seriousness and the difficulties which the Spouse is likely to encounter in the country of the Appellant’s origin;
(ix) The best interests and well being of any children of the Appellant; and in particular the seriousness of any difficulties that they would be likely to encounter in the country to which the Appellant would be expelled;
(x) The solidity of social, cultural and family ties with the host country and with the country of destination.

50. Looking at these issues individually in relation to Mr Asghari:

51. The nature and the seriousness of the offence committed; Mr Asghari is the subject of the deportation order as a result of committing a very serious offence when he inflicted grievous bodily harm upon his estranged wife in the manner outlined in the sentencing remarks of HHJ Catterson. The sentence imposed, even allowing for the discount given for his guilty plea, was a very long sentence as fact recognised by HHJ Plumstead; but one justified in all the circumstances of the case. It is also recorded that Mr Asghari has a number of previous convictions of a violent nature and that the recent offences represent an escalation in the seriousness of his offending.

52. The length of Mr Asghari’s stay in the country from which he or she is to be expelled; It is accepted Mr Asghari has been in the United Kingdom for over twenty five years and has formed a private life here recognise by Article 8 ECHR.

53. The time that had elapsed since the offence was committed and Mr Asghari’s conduct during that period: The GBH offence was committed on 2nd July 2006. He was sentenced on 6th November 2006 and at the conclusion of his sentence released under supervision. Notwithstanding all that occurred, in December 2012 he committed a serious sexual offence for which he has been sentenced to a substantial period of imprisonment.

54. The nationalities of the various parties concerned; Mr Asghari is Afghan. There are no other relevant parties.

55. Mr Asghari’s family situation, such as length of marriage and other factors expressing the effectiveness of his family life; Mr Asghari was married and has children but there is no evidence of any subsisting family life with his estranged wife in the UK, who was the victim of the GHB. Zahira is aged 18 and an adult. Sayeed is twelve. Proceeds were commenced in the Watford Country Court resulting in an indirect contact order. I have seen evidence of indirect contact through solicitors in the bundle and find that any family life with his children is limited to such contact; which it has not been shown cannot be continued from aboard. In relation to siblings in the UK, I find it has not been proved that the necessary element of dependency exits to show that family life recognised by Article 8 exits with them, including Dr Asghari. I accept de facto family life exists and that the brothers form an important part of each others private lives. There is no suggestion any other family member will have to leave the UK as a result of this order and I proceed on this basis. I accept Dr Asghari has provided financial assistance and support but in relation to such financial assistance in JB (India) and Others v ECO [2009] EWCA Civ 234 the Court of Appeal said that financial dependence “to some extent” on a parent did not demonstrate the existence of strong family ties between adult children and the parent nor did weekly telephone calls evidence anything more than the normal ties of affection between a parent and her adult children.

56. Whether the spouse knew about the offence at the time he or she entered into the family relationship; This is not relevant to this appeal.

57. Whether there are children in the marriage and if so their ages; See above.

58. The seriousness and the difficulties which the Spouse is likely to encounter in the country of the Appellant’s origin; this is not relevant on the facts.

59. The best interests and well being of any children of the Appellant; and in particular the seriousness of any difficulties that they would be likely to encounter in the country to which the Appellant would be expelled; this is not relevant on the facts as the children are British Citizens who shall remain in the UK with their mother.

60. The solidity of social, cultural and family ties with the host country and with the country of destination: Mr Ashgari has an established life in the UK and I accept the evidence that he has very little relevant experience of living in modern day Afghanistan. In Maslov v Austria (Application 1638/03) ECtHR (First section) the Grand Chamber said that, whilst Article 8 did not provide an absolute protection against expulsion for any category of alien, in cases involving settled migrants who had lawfully spent all or a majority of their lives in the host country very serious reasons were required to justify expulsion. Notwithstanding this decision, time per se is not the determinative factor. In JO (Uganda) and JT (Ivory Coast) v SSHD [2010] EWCA Civ 10 the Court of Appeal said that in expulsion cases, whether the Appellant is to be deported on conducive grounds or removed as an illegal entrant or overstayer, good reasons will be needed for a finding that expulsion is proportionate when the Appellant has lived in this country since early childhood. However, deportation cases may be easier to justify, insofar as the danger to society posed by a criminal offending may attract greater weight than the need to maintain effective immigration control.

61. There are also a number of relevant examples where the European Court of Human Rights has accepted that, notwithstanding the fact an appellant has been in the host country for a considerable period of time, the nature of the offending means the decision to deport has been found to be proportionate. Such cases include Onur v. the UK (Application no. 27319/07) ECtHR (Fourth Section) in which a 31 year old Turkish Kurd had been in the UK with his family since 1989 and had ILR. In 1994 he started a six year relationship with a British citizen during which time he was convicted on seven occasions for a number of different offences including a conviction for aggravated burglary. In 2000 he was sentenced to four and half years for robbery. Shortly afterwards, his partner, from whom he had separated, gave birth to a daughter. In 2005 the applicant entered into a non-legally binding marriage by Kurdish rite with a British citizen. He and this partner have two children - one born in 2007 and the other in 2008. The applicant was informed in 2001 that deportation was contemplated and in 2006 he was served with an undated Notice of Decision to Make a Deportation Order. On appeal he submitted a report prepared by a consultant clinical psychologist who diagnosed him as having mild to moderate depression, panic disorder, mild mental retardation, borderline intellectual functioning and dyslexia. The ECtHR stated that, although the majority of the applicant's criminal convictions were at the less serious end of the spectrum of criminal activity and were non-violent in nature, the Court could not ignore the more serious convictions for burglary and robbery. Although the majority of his offences were committed when he was between seventeen and eighteen years old, he was in fact nineteen years old when he was last convicted of burglary and twenty-two years old when he was convicted of robbery. The case was therefore readily distinguishable from Maslov. The Court accepted that the applicant had spent a significant amount of time in the United Kingdom although it could not be said that he spent the major part of his childhood or youth there. He did not return to Turkey during the nineteen years he lived in the United Kingdom and although he spoke Turkish at the time of his removal from the United Kingdom, he no longer had any social, cultural or family ties to Turkey. Although the Court did not wish to underestimate the practical difficulties entailed for the applicant or his partner in relocating to Turkey, no evidence had been adduced which would indicate that it would be either impossible or exceptionally difficult for them to do so. Although the applicant was, prior to his deportation, diagnosed as suffering from mild to moderate depression, panic disorder, mild mental retardation, borderline intellectual functioning and dyslexia, there was no evidence to suggest that he could not receive treatment or counselling in Turkey should the need arise. The appeal was dismissed.

62. In Grant v UK (Application No 10606/07) ECtHR (Fourth Section) the Appellant arrived in the UK in 1974 to join his mother; he had various children here; and he had been convicted of a string of offences. The ECtHR upheld the decision to deport because the sheer number of offences and the time span during which they were committed outweighed the fact that the offences could not properly be described as serious criminal activity. Moreover the claimant had continued to offend even after he had been warned that such behaviour would expose him to the risk of deportation. Although he had been in the UK for 34 years it could not be overlooked that he had never co-habited with any of his children; three of them were adults and not dependant on him; and his deportation would not have as a great an impact on his young daughter as it would have had if he had been living with her. He did not have strong social or family ties with Jamaica but it could not be said that he had become so estranged from that country that he would no longer be able to settle in Jamaica. It was also relevant that he could apply to have the deportation order revoked after 10 years.

63. In Balogun v United Kingdom (Application no. 60286/09) ECtHR (Fourth Section) the Nigerian applicant had been in the UK since the age of three. He was granted ILR following an application made in 2003. In 2007 aged twenty he was convicted of two counts of possession of Class A drugs with intent to supply for which he was sentenced to three years’ imprisonment. It was held the nature of the Applicant’s offending and the fact that, with the exception of one conviction, all of his offences appeared to have been committed when he was over the age of eighteen meant that his case could be clearly distinguished from that of the applicant in Maslov. Although he had been here since the age of three and could be considered a migrant who had spent virtually the whole of his childhood here and although he had not reoffended since his release from prison and deportation would have a very serious impact on his private life, given his repeated, drugs-related offending and the fact that the majority of his offending was committed when he was an adult there was no breach of Article 8.

64. It is argued that Ms Asghari is unable to return to Afghanistan as he will have no prospects there and be unable to find work and will be at risk. It was decided Mr Asghari would not give evidence before the Upper Tribunal and so I was unable to assess him giving evidence, hear him express any feelings of remorse or explain his conduct, or see how the credibility of what was being said about him stood up to cross-examination.

65. I also formed the impression hearing Dr Asghari that his commitment to his brother is so great and the bond within this family is so strong that care has to be taken in assessing the plausibility of his evidence in support of his brother. I gained the impression that what was being presented to me was a scenario calculated to ensure maximum benefit to Mr Asghari in relation to his attempt to remain in this country. An example of this is the claim that if returned Mr Asghari will be destitute. He may have a low IQ and personality issues but it has not been proved he will be unable to work, even if at a menial level. An unsigned report of a Zahir Moshini dated 3rd May 2009 refers to the family history and the donations made by Mr Asghari’s father to their own community. The report states the family are well known and loved by their community.

66. A second report written by a Dr Shah [A’s bundle - 154-162], on the issue of Shias in Afghanistan, concluded that in post-Taliban Afghanistan, there is no persistent policy or practice of persecuting Shias. They are reasonably safe in their strongholds, i.e. Hazarajat and Shia majority areas in Kabul city [para 1.4.3.1 - page 159]. Kabul is said to be a relatively safe place for Shia in post –Taliban Afghanistan [para 1.4.3.2 - page 160]. Mr Asghari is less likely to face the risk of being detained and subjected to cruel, inhuman or degrading punishment because of his conviction in the UK and deportation [para 1.4.4 – page 160]. As a minority ethnic group with a history of discrimination Shia are inclined to help each other. Newcomers might get some help from the local Shia community in places like Hazarajat. The economic situation is not encouraging and settling in Kabul will not be easy. Settling in Hazarajat would, however, be easier [para 1.5.4 – page 161].

67. It has not been shown that Mr Asghari, who is from a family loved by the Shia community, would be unable to resettle among them or seek suitable help and assistance if required. I also note the evidence of Dr Asghari that he has to date paid in the region of £100,000 to help his brother and his evidence in his witness statement that if his brother was allowed to remain he will buy a restaurant which Mr Asghari will run to keep him occupied. If he is willing to invest in a restaurant in the UK why will such help not be available to him in Afghanistan? When this question was put to him Dr Asghari claimed that it was because he was not prepared to provide such support to his brother there. This created the impression of evidence being tailored to suit the desired aim of preventing Mr Asghari’s removal by creating a favourable economic future in the UK but no such future in Afghanistan. I accept how Dr Asghari spends his money is a matter for him but he acknowledged that his faith is important to him and yet claims he is willing to abandon his brother if he is returned. Whilst that on the face of it, in light of the strength of feelings expressed within the family, the past evidence of considerable financial and other support, and his religious and personal conscious, sounds implausible; if such help is not forthcoming that does not change the fact that although it will be difficult for Mr Asghari to re-adjust to life in Afghanistan, it has not been shown to be impossible or result in treatment of sufficient severity to engage Article 3 ECHR.

68. Dr Asghari also spoke at length when giving his evidence of the risk to the appellant in handling money and if receiving and collecting remittances. Sending remittances to Afghanistan is a common practice by those abroad to assist families and there is an established banking /money transfer system in place to facilitate the same. If Dr Asghari has no intention of sending any form of help this appears an academic issue but, as he raised it as an issue, I have considered it. There in no country evidence showing an enhanced risk to those who collect remittances. It has not been shown that Mr Asghari lacks the necessary skills to collect and manage his money or to purchase basic necessities. The ability to survive is not dependant upon a level of IQ and Mr Asghari has lived away from his brother for some time in the past without evidence of destitution.

69. Dr Ashgari also spoke of difficulties faced when he returned to Afghanistan to retrieve the family land but Mr Asghari is not returning for this purpose and it has not been proved his presence per se will result in such a view being imputed to him in the absence of steps being taken by him to retrieve the land or any resultant ‘real risk’ sufficient to entitle him to a grant of international protection.

70. In addition I note there appears to have been little work done to analyse the cause of the appellants violent offending which may be indicative of a flaw in his personality/psychological make up rather than any form of mental illness. There are no up to date expert reports from an expert in the field of violent/sexual offending to assist the Tribunal in understanding why following his release from prison and intensive supervision and assistance from his brother after his GBH conviction, he launched himself on a young woman in an unprovoked and violent attack of a sexual nature as described above. There is nothing in the evidence to give me confidence that the reason why he behaves as he does and has for a number of years is fully understood by his family. The fact the appellant is in denial is a further cause for concern in relation to the prospects of further offending in the future.

71. I have noted HHJ Catterson’s observations on the psychiatric evidence presented to the Crown Court as part of Mr Asghari’s mitigation in connection with the GBH offence and a report written by a Dr Abou-El-Fadi dated 21st July 2009. Dr Abou-El-Fadi is stated to be a Consultant Psychiatrist who was instructed to prepare a report for the First-tier Tribunal hearing.

72. At paragraph 13 of the report [A’s appeal bundle page 166] it is noted that following the assault that resulted in the GBH conviction Mr Asghari’s wife was found to have sustained internal organ damage – probably damage to her kidney and vertebral column.

73. Mr Asghari was assessed as being of limited and probably borderline intelligence. The comment in paragraph 27 of the report [A’s bundle – p169] that Mr Asghari’s failure to apply for citizenship was probably as a result of his limited ability to manage his affairs is factually incorrect as he did apply but was refused as a result of his character/convictions – see para 5 above. In paragraph 28 it is said Mr Asghari’s limited intelligence has predisposed him to act in a volatile and irrational way.

74. In paragraph 32 [A’s bundle – page 170] it is said the risk of re-offending should be significantly curtailed if he were to receive ongoing psychiatric treatment with the proviso of obeying conditions imposed by the judge not to have contact with his wife. Such treatment is said in paragraph 33 to include the prescription of a suitable tranquiliser and anti-depressant and psychotherapy to enable him to manage his anger and, if maintained over a reasonable period, should enable him to have safe contact with his wife and children.

75. The report also refers to the risk of deportation and mentions the risk of self harm which has not been raised as an issue before me and which is not analyzed in the report. In any event treatment for any mental health issues will be available in the UK, in transit, and has not been shown not to be available in Afghanistan, which will enable any risk to be managed. Treatment in Afghanistan will enable him to deal with the issues raised in the report there. He does not need to remain in the UK for this purpose. The high threshold set out in N and related mental health case law in relation to Articles 3 and 8 based upon this issue has not been shown to be met. There is also no addendum following the sexual offence which was committed outside the familial scope the author of the report refers to and with no element of provocation.

76. The facts of the case clearly show Mr Asghari has a serious personality problem which has led him to acts of unacceptable violence in the past. He was first cautioned at the age of twenty four and so all offending has been as an adult - Maslov distinguished. Mr Asghari has been assessed as presenting a high risk to the public and I find this to have been proved to be the case by the commission of his latest offence which represents a further escalation in his violent criminal conduct. I accept this brother loves him and wants to do all he can for him but the offer of help in the future and his proposal is, I find, based upon family loyalty and not reality. Dr Asghari accepted in his oral evidence that his witness statement offering help was made when he was unaware of the true nature of the recent offence although he stated now he was aware it made no difference to his offer. When asked by me whether the appellant has explained to him what he did and why, he recounted a version very different from that in the sentencing remarks which I find is further evidence of minimisation, lack of acceptance of blame/responsibility, and perhaps deceit in not admitting the truth. Dr Asghari had not even checked if his brother would be permitted to live in his house where he has a female partner and young daughter. They too appear to have been unaware of all the facts when they made statements supporting Mr Asghari’s return and neither did they attend court to give oral evidence. I can place little weight on offers of help and assistance in a case involving a convicted sexual offender when those offering the help are unaware of the full facts of the case and the real issues of concern, including a real risk of further sexual offences which may include rape.

77. There is no expert evidence from a person with expertise in this field showing there are realistic prospects of a successful rehabilitation such that the risk of re-offending can be found to have been reduced. Dr Asghari’s belief in the power of the family and Islam is commendable but not evidentially sufficient. If Mr Asghari is unable to live with his brother he will have to live nearby. This raises the question of where he will be permitted to live as he is on the sex offenders register and what level of supervision is available. Dr Asghari and his partner both work in their dental practice and are successful because of the work ethic he has. He cannot maintain this and supervise his brother. He claims other family members will help but no oral evidence was given from them, notwithstanding their presence in court.

78. I also note Dr Asghari’s claim that when his brother lived with him in Poole, and until he went to Hertfordshire, he was supervised by him. I have also seen a letter from the Probation Service dated 9th December 2009 regarding the level of supervision Mr Asghari received yet, despite such input, he re-offended in a more violent and perverse way.

79. The two more recent and serious crimes are crimes that cause much revulsion and in these circumstances, only the most pressing compassionate circumstances could outweigh the need to remove. No such circumstances have been proved in this case. There is a very strong argument that the deterrent effect is of considerable importance in relation to the GBH which has a domestic element, in relation to the unacceptable perception in some communities that their honour and status and or position in a marriage entitles them to resort to violence against their spouses or partner, and in relation to the need to deter potential sexual offenders.

80. I find the Secretary of State has discharged the burden of proof upon her to the required standard to show that the decision to deport the appellant is proportionate when all relevant factors have been given the most anxious scrutiny required in an appeal of this nature. The exclusion to be found in section 33 UKBA 2007 has not been made out. The appeal is dismissed.

Decision

81. The First-tier Tribunal panel have been found to have materially erred in law. Their determination has been set aside. I remake the decision as follows. This appeal is dismissed.

Anonymity.

82. The First-tier Tribunal did not make an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

Signed……………………………………………….
Upper Tribunal Judge Hanson

Dated the 22nd May 2012