Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/05033/2016

THE IMMIGRATION ACTS

Heard at Newport (Columbus House)
Decision & Reasons Promulgated
On 4 October 2016
On 6 October 2016

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

H M
(ANONYMITY DIRECTION MADE)
Respondent

Representation:
For the Appellant: Mr I Richards, Home Office Presenting Officer
For the Respondent: Mr H Dieu instructed by Duncan Lewis, Solicitors

DECISION AND REASONS
1. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) I make an anonymity order. Unless the Upper Tribunal or court directs otherwise, no report of these proceedings shall directly or indirectly identify the respondent (HM). This direction applies to both the appellant and to the respondent and a failure to comply with this direction could lead to Contempt of Court proceedings.
2. Although this is an appeal by the Secretary of State, for convenience I will refer to the parties as they appeared before the First-tier Tribunal.
3. The appellant is a citizen of the Democratic Republic of Congo ("DRC") who was born on November 1989. On 4 September 2015, the Secretary of State made a decision to deport the appellant under the automatic deportation provisions of the UK Borders Act 2007. This followed on from his conviction on 5 January 2015 of an offence of possession of class B drugs with intent to supply to which he was sentenced to a period of twelve months' imprisonment.
4. On 26 November 2015, the appellant made a claim for asylum. The basis for that claim was that he feared persecution on return to the DRC as a gay man and that he feared persecution by the DRC authorities.
5. On 3 May 2016, the Secretary of State refused the appellant's claim for asylum, for humanitarian protection and under Art 8 of the ECHR.
6. The appellant appealed the refusal of his protection and human rights claims to the First-tier Tribunal. The appeal was heard by Judge Trevaskis on 13 July 2016. In a decision promulgated on 25 July 2016, Judge Trevaskis allowed the appellant's appeal on asylum grounds and under Art 8. As regards the former, Judge Trevaskis accepted that the appellant was a gay man and that he would be at real risk of persecution if returned to the DRC. As regards the latter, Judge Trevaskis found that the appellant fell within para 399A (based upon his private life in the UK) and that his removal would be a disproportionate interference with his private life.
7. The Secretary of State sought permission to appeal Judge Trevaskis' decision. First, the Secretary of State argued that the judge's decision to allow the appeal on asylum grounds was legally flawed. The grounds challenge the judge's positive credibility finding and also his finding that as a gay man the appellant would be at risk on return to the DRC. Secondly, the Secretary of State argued that the judge had wrongly applied para 399A to the appellant, in particular in finding that he had been "lawfully resident in the UK for most of his life" when, although he had been resident in the UK for most of his life, it had not been lawful residence as he had not been granted indefinite leave to remain until 8 April 2005.
8. On 17 August 2016, the First-tier Tribunal (Judge Easterman) granted the Secretary of State's permission to appeal only on the ground challenging the judge's decision to allow the appeal under Art 8. Judge Easterman refused permission in respect of the grounds challenging the asylum decision on the basis that they did not disclose any arguable error of law.
9. The Secretary of State did not renew her application for permission to appeal to the Upper Tribunal on the grounds upon which permission had been refused by Judge Easterman. On 19 September 2016, the appellant filed a rule 24 response seeking to uphold Judge Trevaskis' decision.
10. Thus, the appeal came before me.
11. At the hearing, Mr Richards who represented the Secretary of State, acknowledged that permission had not been granted to challenge the judge's decision to allow the appeal on asylum grounds. Mr Richards accepted that the judge's decision to allow the appeal on asylum grounds stood. He indicated that he did not wish to pursue the appeal except to the extent of inviting me to find that the judge had clearly erred in law in applying para 399A and in allowing the appeal under Art 8.
12. Mr Dieu, who represented the appellant, acknowledged that the appellant's claim under Art 8 was somewhat redundant as he had succeeded on asylum grounds. He accepted that Judge Trevaskis had erred in law in his approach to para 399A and, therefore, in allowing the appeal under Art 8 and that that aspect of his decision could not stand. Mr Dieu indicated that, in the light of the appellant's success on asylum grounds, he no longer wished to pursue the appeal in respect of Art 8 and was content that the First-tier Tribunal's decision should be upheld to the extent that it allowed the appellant's appeal on asylum grounds.
13. In my judgment, both representatives correctly accepted that Judge Trevaskis had misapplied para 399A as the appellant could not establish that he had been "lawfully resident in the United Kingdom for most of his life". He had first entered the United Kingdom in 1992 when he was 3 years of age. At the date of the hearing before Judge Trevaskis, the appellant was 26 years of age. He had, therefore, lived in the UK for 23 years. However, it was not until 8 April 2015 that the appellant had any lawful basis for remaining in the UK when he was granted indefinite leave to remain. As a consequence, it cannot be said that he has been lawfully resident in the UK for most of his life. Judge Trevaskis erred in law in finding that the appellant met the requirements of para 399A and, as a consequence, in allowing the appellant's appeal under Art 8 of the ECHR.
14. That decision cannot, therefore, stand and is set aside.
15. However, as I have already indicated, Mr Dieu did not seek to pursue the appellant's appeal under Art 8. He was content that the First-tier Tribunal's decision to allow the appellant's appeal on asylum grounds stood.
Decision
16. Thus, the decision of the First-tier Tribunal to allow the appellant's appeal under Art 8 involved the making of an error of law. That decision cannot stand and is set aside.
17. However, the First-tier Tribunal's decision to allow the appellant's appeal on asylum grounds stands.

Signed

A Grubb
Judge of the Upper Tribunal

Date: 6 October 2016