Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/01099/2014

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 3 January 2017
On 21 April 2017

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

SHEPHERD KAMBADZI
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss Khan, instructed by Lawrence Lupin
For the Respondent: Mrs Pettersen, Senior Presenting Officer

DECISION AND REASONS
1. The appellant, SK, was born in 1980 and is a citizen of Zimbabwe. He entered the United Kingdom in 2002 as a visitor and subsequently fraudulently obtained leave to remain as a student. When that fraudulent leave expired, the appellant did not leave the United Kingdom. On 9 December 2005 he was convicted at the Crown Court of common assault and sexual assault and sentenced to one year imprisonment and was placed on the sexual offenders list. On 7 March 2006, a decision was taken to deport the appellant to Zimbabwe. The appellant failed in subsequent appeals with further representations made by the appellant’s solicitors to the respondent in 2012 and a new decision rejecting the appellant’s asylum and human rights (Articles 3 and 8) claims was issued on 25 May 2014. The appellant appealed against that decision to the First-tier Tribunal (Judge Dearden) which, in a decision promulgated on 11 September 2015, dismissed the appeal. The appellant now appeals, with permission, to the Upper Tribunal. In the light of what I have to say below (see [6] below) I do not make an anonymity direction.
2. Upper Tribunal Judge Freeman granted permission to appeal in the following terms:
(a) This appellant’s claim to have been unlawfully detained in 2006 – 08 was allowed on appeal to the Supreme Court in SK (Zimbabwe) [2011] UKSC 23, the decision in which does not seem to have any bearing on the questions arising on the present appeal, which followed an order for a fresh hearing, given by Judge Deborah Taylor in the Upper Tribunal on 22 May 2015.
(b) The present decision under appeal, by Judge Graham Dearden, was sent out on 11 September, and Upper Tribunal Judge Christine Martin refused permission to appeal in the First-tier Tribunal: her decision was sent out on 9 October, but the solicitors say they did not receive it till the 12th. No evidence of this has been filed; but, as the 9th was a Friday, and the 12th a Monday, it is most likely correct, and the application just in time. However, when solicitors and counsel between them take time limits to the wire in this way, the least they should do in common politeness is to explain what has happened.
(c) The points made in the renewed grounds start at paragraph 12, and I shall deal with them from there.

12. Counsel has not taken the trouble to provide any cross-referencing for this ground, but it seems to relate to Judge Dearden’s paragraph 44 (3). The suggestion that he was showing disrespect to the Supreme Court’s decision on the point of law before them is completely misplaced: what Judge Dearden was talking about was the appellant’s motives in seeking it, and in not seeking any order for anonymity. Each of the majority for allowing the appeal to the Supreme Court clearly indicated that any damages were likely to be nominal.
13.
(a) There is no cross-referencing here either, and the basis for the ground is far from clear. It relates to the point dealt with by Judge Martin at paragraph 5: as she said, the challenge to Judge Dearden’s findings on the nature of the appellant’s offences in this country relate to the likelihood of his suffering Convention ill-treatment for them on return to Zimbabwe. The present appeal was against the respondent’s refusal to revoke the deportation order previously made, given on 25 May 2014. It followed that the question for decision under the Rules arose in terms of the following paragraphs:
396. Where a person is liable to deportation the presumption shall be that the public interest requires deportation. It is in the public interest to deport where the Secretary of State must make a deportation order in accordance with section 32 of the UK Borders Act 2007.
397. A deportation order will not be made if the person's removal pursuant to the order would be contrary to the UK's obligations under the Refugee Convention or the Human Rights Convention. Where deportation would not be contrary to these obligations, it will only be in exceptional circumstances that the public interest in deportation is outweighed.
(b) The second part of paragraph 396 did not apply in this case, where the appellant’s conviction and 12 months’ sentence for sexual assault preceded the coming into force of the UK Borders Act 2007; but the first part, and on Judge Dearden’s findings of fact, the second part of 397 very clearly did apply. However, the appellant is equally clearly a ‘foreign criminal’ in terms of s. 117D (2) (c) (i), if no other sub-section, of the Nationality, Immigration and Asylum Act 2002, as inserted under the Immigration Act 2014 ; and so the following provisions of s. 117C apply to him:
(1) The deportation of foreign criminals is in the public interest.
(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(3) In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C’s deportation unless Exception 1 or Exception 2 applies.

14. (et seq.)
(a) If Judge Dearden was entitled to find that neither Exception 1 or 2 applied on the facts of this appellant’s case, the public interest clearly required his deportation, at least unless there were the exceptional circumstances provided for under paragraph 397. Again, however, neither set of grounds contains any argument as to ‘exceptional circumstances’, either in that context or under the ‘exceptional and compelling circumstances’ required in a deportation case for a claim under article 8 to succeed outside the Rules, under MF (Nigeria) [2013] EWCA Civ 1192 and authorities since then.
(b) There is no reasoned challenge in the grounds to Judge Dearden’s decision to the effect that Exception 1 does not apply to this appellant. The renewed grounds are directed to challenging his decision that Exception 2 did not apply either. His reason for this was that neither the appellant’s baby-mother nor their children came within the definition of ‘qualifying partner or qualifying child’, “because the child and partner are not British”. Of course that would not matter if any of the children had been here continuously for seven years or more by the date of the decision; but the eldest was born in 2009.
(c) It follows that this appellant could not succeed under Exception (2) on any basis.
(d) There remains only a residual case, as to whether the appellant’s removal would raise exceptional circumstances, outside the in terms of its consequences for children who, like their mother, are not settled here, and have not been here for the seven years required for them to be treated as if they were. Judge Dearden expressly followed the approach set out in MK (section 55 – Tribunal options) [2015] UKUT 223 (IAC); but the two children in that case were ‘qualifying children’, and so there were different questions to be answered.
(e) That was also the position in the two recent decisions discussed in the renewed grounds (MAB (para 399; "unduly harsh") [2015] UKUT 435 (IAC) and KMO (section 117 - unduly harsh) [2015] UKUT 543 (IAC)). It follows that the difference between them, objected to in paragraph 15, is of no direct relevance in this case.
(f) Judge Dearden decided the exceptional circumstances point on the basis that, while the Home Office had conceded that the children could not reasonably be expected to return to Zimbabwe, that was by no means necessarily so. If that had simply stood as an unchallenged decision on the facts by him, then it might not have formed any basis for a grant of permission. However, what Judge Dearden did not refer to was the fact, set out in the decision letter, that the children have been granted discretionary leave to remain here in line with their mother, which may make a difference.
(g) The decision-maker goes so far as to suggest (at paragraph 83) that the mother’s discretionary leave means that the youngest child is a British citizen, which seems, to put it politely, an obvious oversight.
(h) The result is that I grant permission, limited to the following question:
“Was the judge entitled to decide the best interests of the children did not raise any exceptional circumstances as to why the appellant should not be removed to Zimbabwe, on the basis that it was reasonable to expect them and their mother, who all had discretionary leave to remain in this country, to join him there?”
(i) I am not refusing permission to appeal on any other point; but any application to pursue one must be made by notice in writing, filed and served within 21 days of this decision being sent out, with a draft of the point or points which it is wished to take.
3. Miss Khan, who appears for the respondent subsequently filed at the Tribunal a notice on 11 January 2016 stating the appellant’s intention to argue Grounds 1 and 2 of the original grounds of appeal. Those grounds are summarised in her notice as:
(i) Judge Dearden made irrational findings on the appellant’s Supreme Court case;
(ii) Judge Dearden’s approach to the appellant’s offending is contradictory.
4. I shall deal with Miss Khan’s “additional” grounds first. As regards the appellant’s “Supreme Court” case Judge Dearden wrote as follows:
(3) The Supreme Court.
The Appellant’s case is that he was detained unlawfully at the conclusion of his criminal sentence and he sued the British government as a result with the case finalising in the Supreme Court judgment handed down on 25th May 2011. There is evidence at the first bundle, tab C at pages 116 to 125 that this has been reported in the press and there are articles from the Guardian and the Daily Telegraph newspapers. It seems that the Appellant has been awarded damages although I was advised that the damages are nominal and would not result in the Appellant being targeted because of great wealth.
I can understand the Appellant wishing to institute proceedings to secure his release from an immigration detention. However the proceedings to secure damages in my conclusion seem to be motivated by a desire to court publicity rather than to pursue an injustice, especially bearing in mind that the damages gained were nominal and therefore the victory sustained is Pyrrhic. Interestingly I note that Counsel for the Secretary of State sought an anonymity direction to prevent the press publishing the name of the man (a) who had been guilty of a sexual offence, and (b) who had sued the British government for false imprisonment. However Counsel for the Appellant made no representation on the question of anonymity. I find that Counsel for the Appellant was following the Appellant’s instructions and effectively that the Appellant sought the publicity which resulted. I found that the Appellant was opportunistic in the way in which he dealt with this matter. I can understand him bringing court proceedings to secure his release but bringing court proceedings to secure an important point of principle against the Secretary of State seemed in my conclusion to be unnecessary. It was the Appellant’s choice to pursue the litigation. He could have withdrawn the claim after he was released. His conduct suggests to me that he wanted to court the publicity which resulted from the hearing at the Supreme Court to bolster his position in the UK. This is a matter for him.
5. The appellant submits that the judge’s reasoning is irrational; it was not rational for the judge to assume that by exercising his lawful right to make a claim in respect of the denial of his liberty the appellant had, in fact, done no more than to boost his asylum claim by causing publicity.
6. The appellant’s “Supreme Court” case was reported under the reference [2011] UKSC 23. The Supreme Court held at [5]-[7]:
The appellant has been referred to hitherto in these proceedings as SK (Zimbabwe). Mr Tam QC for the respondent invited the court to maintain the order for the appellant's anonymity in accordance with the practice for asylum cases recognised by the Court of Appeal. He suggested that references in the appellant's application for asylum might expose him to risk if he were to be returned to Zimbabwe. Mr Husain for the appellant on the other hand did not ask for the order to be maintained. He did not suggest that there were any reasons for concern in his case. He said that he adopted a position of neutrality on this issue.
There is no doubt that the court has power to make an anonymity order to restrain publication of a person named in its proceedings. In an extreme case, where he or his family are in peril of their lives or safety, this may help to secure his rights under articles 2 and 3 of the European Convention on Human Rights: In re Guardian News and Media Ltd [2010] UKSC 1, [2010] 2 WLR 325, para 26. Those are the rights that are most likely to be relevant if he is seeking asylum. It may also be made to secure that other persons, such as the press, show respect for his private and family life under article 8 of the Convention. But in such cases the person's article 8 rights must be balanced against the article 10 rights of the press and the general public interest in his being identified: In re Guardian News and Media Ltd, para 76. As the decision in that case shows, however, much will depend on the circumstances of each case. It is no longer the case that all asylum seekers as a class are entitled to anonymity in this Court. The making of such an order has to be justified.
I am not persuaded that an order for the appellant's anonymity is justified in this case. It must be recognised, of course, that lifting the order for his anonymity is not entirely without risk. It is rarely possible to predict with complete confidence what risks a failed asylum seeker will face when he is returned to his home country. But the position that the asylum seeker himself adopts will always be an important factor. He is likely to be in the best position to assess the risks and to say whether or not he needs anonymity for his protection. His counsel, Mr Husain, is very experienced in these matters and well able to form a sound judgment as to whether this is necessary or desirable. I would have expected him to inform the court if there were any grounds at all for wishing to preserve the appellant's anonymity. Had he done so I would, of course, have given a good deal of weight to his submissions. As it is, in view of the position that he has adopted on the appellant's behalf, I am not persuaded that there is anything to prevent his being identified in this case. I would set aside the anonymity order, and name the appellant as Shepherd Masimba Kambadzi.
7. The ground is wholly without merit. Judge Dearden’s observations had no arguable bearing upon the outcome of the appeal whatsoever. At [49]-[50], Judge Dearden wrote:
49. That seems to clearly and unequivocally set out that a past criminal conviction will not give rise to interest from the CIO. If a past criminal conviction does not give rise to interest from the CIO, I find that a past successful suing of the British government for unlawful detention will not give rise to outstanding interest from the CIO.
50. In summary, whilst I accept that the Appellant’s activities have been published on the internet, he is not the subject of any outstanding warrants in Zimbabwe. He has not said that he has committed any offences in Zimbabwe for which he is outstanding and I therefore conclude that not only has the Appellant engineered the publicity (I take no adverse inference from his actions) which has resulted from his criminal conviction and from his suing the British government, but that even though he has engineered this publicity it still does not give rise to a real risk of persecution on return.
8. In any event, given the appellant’s position as recorded by the Supreme Court (see quotation above) the appellant himself does not suggest that exposure of his identity in the Supreme Court case could possibly have enhanced any risk he might face upon return to Zimbabwe. He made no such argument before the Supreme Court itself. Ground 1, therefore, takes the appellant’s case nowhere at all. Even if Judge Dearden’s observations were misguided they had no obvious influence on the outcome of the appeal, whilst the appellant himself does not seek to draw any support for his asylum claim from what he asserts is Judge Dearden’s error of law.
9. The second ground of appeal also has no merit. At [44(2)] Judge Dearden wrote:
(2) The conviction for the sexual offence.
The Appellant was convicted at the Luton Crown Court in 2005 and was sentenced by the judge on 24th January 2006. The sentencing remarks are to be found in bundle 1, tab D, page 68. The common assaults relate to the Appellant grabbing a female on two occasions, firstly by grabbing her around the throat, and secondly by slapping her across the face. It is said that the sexual assault consists of “twisting up her clothing and exposing her breasts and then lying on top of her after making a variety of suggestive remarks to her”. The judge did not know precisely why these offences had occurred but concluded that the jury had believed the victim and disbelieved the Appellant.
There is evidence that this conviction has been published on the internet because at tab C, pages 116 to 125 are extracts from Google Search in the name of the Appellant. The Appellant is described as a sex offender who had been jailed in 2005. I acknowledge that this offence, although serious, is now ten years ago. Interestingly, the Appellant’s position was that he was ostracised by the Zimbabwean community in the United Kingdom as a result of his conviction and cannot any longer mix with friends. Assessing whether that is truthful I note that the Appellant lacks credibility in his asylum claim and made a false statement in seeking leave to remain in the United Kingdom as a student. The Appellant’s evidence to me was that when he was convicted of driving a motor vehicle with excess alcohol he was out with a friend with whom he had been playing football (presumably with others). The Appellant’s assertion that he has no friends and cannot mix with friends because of the conviction in my conclusion lacked credibility. I observe that the Appellant is at a low risk of offending. That is evidenced by the psychological report of Dr Carolyn McNally to be found in the first bundle, tab D, page 1 and the core assessment carried out by Wakefield Metropolitan District Council assisted by input from the police. I conclude that the evidence in the papers before me persuades that the Appellant, especially in view of the fact that the offence was ten years ago, is at a low risk of offending in the future. However the Appellant’s case is that the very fact that he has been convicted of two offences of common assault and one sexual offence means that he will be at risk at the airport in Harare if he is returned there. Again, I will be considering the country guidance cases in relation to this but I find that the Appellant never adequately explained why the Zimbabwean authorities would be firstly interested in a man who grabbed a female around the throat and slapped her across the face, and secondly twisted her clothing exposing her breasts. I am not minimising the crimes committed by the Appellant and I acknowledge that sexual crimes are always treated seriously by the Respondent but these crimes did not seem to be the type which would threaten the very fabric of Zimbabwean society.
10. The appellant complains that the judge’s subsequent observations at [57(2)] are contradictory:
(2) The offences of common assault which the Appellant committed were not the most serious of offences, but the sexual assault in my conclusion was a very serious offence and the judge obviously thought that after trial the offence warranted immediate sentence of imprisonment of twelve months. I form the view that the Appellant is still denying that he took part in the offence despite being convicted by the jury and this does not bode well in my conclusion for his rehabilitation.
11. In this paragraph, Judge Dearden is discussing the appellant’s sexual offence in the context of his asylum claim at [44]; at [57] he was discussing the sexual offence in the context of the Article 8, ECHR proportionality assessment. How the sexual offence may be regarded by the Zimbabwean government has no obvious connection whatever to its relevance in the Article 8 assessment by the First-tier Tribunal Judge. The judge was making different points about the same part of the factual matrix and doing so in a wholly different legal context. His observations are in no way contradictory.
12. This brings me to the main basis of the appeal, namely the question as formulated by Judge Freeman in his grant of permission: “was the judge entitled to decide the best interests of the children did not raise any exceptional circumstances as to why the appellant should not be removed too to Zimbabwe on the basis that it was reasonable to expect them and their mother who all had discretionary leave to remain in this country, to join him there?”
13. In the refusal letter, the respondent at [78] stated that “it is considered unreasonable to expect your daughter to leave the UK as she has been granted discretionary leave in line with her mother.” At 57(7) Judge Dearden wrote:
(7) Mrs Maposa has discretionary leave to remain in the United Kingdom. She came here a number of years ago but her asylum claims have been dismissed and she is appeal rights exhausted. She has no right to be in the United Kingdom other than on the basis of the discretionary leave granted by the Secretary of State. Mrs Maposa is not British and her children are not British. She is Zimbabwean and so are her children. When Mrs Maposa entered the United Kingdom she did so with no legitimate expectation that she would be expected to remain here for ever. Her asylum claims have been dismissed and she should not assume that simply because she has been here a long time that she can remain. When she came to the United Kingdom she knew no-one but has still managed to thrive. Mrs Maposa wishes to study for a degree in midwifery and therefore is an intelligent woman of considerable acumen. She holds down a very demanding job in a care home, in my conclusion if she were removed to Zimbabwe or if she chose to go to Zimbabwe with her husband she could transfer those skills there. Whilst I note that the reasons for refusal letter indicates that it is unreasonable to expect the children to go to Zimbabwe I do not necessarily agree that such is the right conclusion. If the Appellant’s appeal is dismissed and he has to return to Zimbabwe, I can see no difficulty in the Appellant’s wife and children either accompanying him or joining him a little later when he has established himself. Mrs Maposa would have to give up her employment and the eldest child would have to leave her young school friends but neither of these matters could be described as particularly significant or compelling. In just the same way as Mrs Maposa gained employment in the United Kingdom she can gain employment in Zimbabwe where she has spent the majority of her life and obviously speaks the language. Identical considerations apply to the Appellant.

14. Judge Dearden was concerned with the reasonableness of expecting the children and their mother to live in Zimbabwe if that was the only means by which family life could be continued (other than the family remaining together in the United Kingdom). That is an assessment which a First-tier Tribunal Judge may have to make where family members have not only discretionary leave but also indefinite leave to remain and even, in some circumstances, British citizenship. The law which Judge Dearden was obliged to apply to the facts in this case do not per se render it unreasonable for individuals who have discretionary leave to remain in the United Kingdom to follow a family member who is being deported back to the country of which they are all citizens. Whether or not the mother and children do give up their discretionary leave and travel back to Zimbabwe with the appellant is a matter for them. It was sufficient for Judge Dearden to consider the reasonableness of family life taking place outside the United Kingdom and in reaching that decision he was not, in my opinion, bound by observations made in the Secretary of State’s letter which arose in a wholly different context. There is no suggestion that Judge Dearden has failed to consider all the relevant circumstances in reaching his finding and I can identify no reason why the Upper Tribunal should interfere with that finding. Having found that the appellant’s wife and children would have “no difficulty” in returning to Zimbabwe with the appellant and having properly applied the provisions of Section 117 of the 2014 Act (see 57(9)) the judge properly concluded that there were no exceptional circumstances which compelled a grant of leave to remain under Article 8 ECHR in circumstances when the appellant could not succeed under the Immigration Rules. Judge Dearden was fully aware that the wife and children had discretionary leave and I am satisfied that he did have regard to their immigration status in reaching his decision.
15. In the circumstances, I am satisfied that Judge Dearden did not err in law for the reasons stated in the grounds of appeal or at all. The appeal is dismissed.
Notice of Decision
16. This appeal is dismissed.

Signed Date 15 March 2017

Upper Tribunal Judge Clive Lane

TO THE RESPONDENT
FEE AWARD

The appeal has been dismissed there is no fee order.

Signed Date 15 March 2017

Upper Tribunal Judge Clive Lane