DA/00709/2012

• Status of case: Unreported
• Hearing date: 27 Nov 2013
• Promulgation date: 19 Dec 2013
• Publication date: 11 Jan 2023
• Last updated on: 11 Jan 2023

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00709/2012


THE IMMIGRATION ACTS


Heard at Newport
Determination Promulgated
On 27 November 2013
On 19 December 2013



Before

UPPER TRIBUNAL JUDGE GRUBB


Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

DGW
Respondent


Representation:
For the Appellant: Mr I Richards, Home Office Presenting Officer
For the Respondent: No appearance


DETERMINATION AND REASONS
1. This appeal is subject to an anonymity order made by the First-tier Tribunal pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 (SI 2005/230). Neither party invited me to rescind the order and I continue it pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698).
2. For convenience, I will refer to the parties as they appeared before the First-tier Tribunal.
3. The appellant is a citizen of Zimbabwe who was born on 18 July 1985. He came to the UK on 19 December 2001 and was granted limited leave to remain until 13 August 2005. On 28 November 2005, the appellant was granted indefinite leave to remain on the basis of UK ancestry. On 15 May 2012 the appellant was convicted at the Bristol Crown Court of a number of offences involving controlled drugs and was sentenced to a total term of imprisonment of 16 months. On 15 June 2012 the appellant was notified of his liability to be deported pursuant to the automatic deportation provisions in the UK Borders Act 2007. On 20 September 2012, the Secretary of State made a deportation order against the appellant.
4. The appellant appealed to the First-tier Tribunal relying both upon the Refugee Convention and Article 8 of the ECHR. The First-tier Tribunal allowed the appellant’s appeal under the Refugee Convention and also under Articles 2 and 3 of the ECHR. Further, the First-tier Tribunal allowed the appeal under Article 8 of the ECHR.
5. On 29 November 2012, the Secretary of State was granted permission to appeal to the Upper Tribunal.
6. The appeal was initially listed before me in the Upper Tribunal on 25 March 2013. In a decision dated 11 April 2013, I concluded that the First-tier Tribunal had not erred in law in allowing the appellant’s appeal under Article 8 and that decision was to stand. However, I concluded that the First-tier Tribunal had materially erred in law in allowing the appellant’s appeal under the Refugee Convention and Articles 2 and 3 of the ECHR. As a consequence, the appeal was adjourned to be relisted for a resumed hearing at which the Upper Tribunal would remake the decision in relation to the Refugee Convention and Articles 2 and 3 of the ECHR.
7. The appeal was relisted before me for that purpose on 27 November 2013.
8. On the morning of the hearing, Mr Richards, who represented the Secretary of State provided me with a copy of a facsimile sent by the appellant’s representative, Mr Derek McConnell of South West Law dated 25 November 2013. In that fax, Mr McConnell indicated that the appellant would not be attending the hearing and that he would not be represented. Mr McConnell stated that the appellant would no longer be relying on the Refugee Convention and any claim under Articles 2 and 3 of the ECHR. Mr McConnell relied upon my decision dated 11 April 2013 that the First-tier Tribunal’s decision to allow the appellant’s appeal under Article 8 stood.
9. It is clear from Mr McConnell’s facsimile that the appellant no longer relies upon the Refugee Convention and Articles 2 and 3 of the ECHR and is content to rest the appellant’s claim to remain in the UK on the First-tier Tribunal’s decision that it would breach Article 8 of the ECHR to deport him.
Decision
10. The Secretary of State’s appeal to the Upper Tribunal is allowed to the extent that the First-tier Tribunal’s decision to allow the appellant’s appeal under the Refugee Convention and under Articles 2 and 3 of the ECHR is set aside.
11. The appellant no longer pursues this appeal under the Refugee Convention and Art 2 and 3 of the ECHR. Consequently, I dismiss the appellant’s appeal under the Refugee Convention and under Articles 2 and 3 of the ECHR.
12. The decision of the First-tier Tribunal to allow the appellant’s appeal under Article 8 stands.



Signed


A Grubb
Judge of the Upper Tribunal

Date: