PA/06450/2017

• Status of case: Unreported
• Hearing date: 19 Jun 2024
• Promulgation date: 27 Jun 2024
• Publication date: 15 Jul 2024
• Last updated on: 15 Jul 2024

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Appeal No: PA/06450/2017


THE IMMIGRATION ACTS


Decision and Reasons Issued:
On 27 June 2024


Before

UPPER TRIBUNAL JUDGE KOPIECZEK


Between

AGK
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent


Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity, because this is a protection appeal.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.


DECISION AND REASONS



Introduction
1. The appellant is a citizen of Iraq, born in 1979. He is of Kurdish ethnic origin. By a decision dated 30 April 2021, Upper Tribunal Judge Owens set aside the decision of the First-tier Tribunal (“FtT”). The FtT had dismissed the appellant’s appeal against a decision dated 22 June 2017 refusing his protection and human rights claim, in the context of a decision to make a deportation order because of the appellant’s criminal offending.
2. Judge Owens concluded that the FtT erred in law in its consideration of the issue of documentation (the CSID card) and its relationship to the appellant’s prospective removal. She also concluded that there had been legal error in the FtT’s consideration of the best interests of the appellant’s children.
3. Having aside the decision of the FtT, Judge Owens decided that the decision on the appeal should be re-made in the Upper Tribunal (“UT”). The hearing was adjourned accordingly, with directions as to the future conduct of the appeal.
4. The following is a brief summary only of the course of events after Judge Owens’ decision.
5. The appeal came before me on 12 September 2022 but was adjourned because it was not ready to proceed in the light of a suggestion that the appellant had been granted settlement under the EU Settlement Scheme, but the position was not clear.
6. At a case management review hearing (“CMR”) before me on 14 October 2022 the respondent conceded that the appeal should be allowed on Article 3 ECHR grounds. The question of humanitarian protection needing to be decided, so I gave further directions for the respondent to consider her position on humanitarian protection. The respondent failed to comply with those directions and failed to respond to a reminder in respect of them.
7. There was a further CMR before me on 21 June 2023 but the respondent had still not complied with directions. Further directions were made, in particular relating to what leave the appellant was to be granted in the light of the concession by the respondent in relation to Article 3 and as regards the respondent’s position in relation to humanitarian protection. There was further default on the part of the respondent in complying with directions.
8. On or about 2 January 2024 the respondent notified the UT that the appellant would be granted 30 months’ discretionary leave on Article 3 grounds, and the grant of that leave is now confirmed. Further directions were made by the UT’s lawyers with regard to the issue of exclusion from humanitarian protection and for the appellant to notify the UT as to whether the appeal on humanitarian protection grounds, the only remaining issue, was to be pursued.
9. At a further CMR on 19 January 2024 I gave further directions for written submissions from the respondent on the question of whether the appellant was excluded from humanitarian protection by reason of his conviction(s). The respondent’s original decision had stated that the appellant was so excluded. I referred the parties to the sentencing remarks in relation to the offences of theft and possession of a firearm (which prompted the deportation decision) which in fact latterly indicated a sentence of 51 weeks’ imprisonment, not 12 months’ imprisonment as had previously been thought.
10. I have received written submissions from the parties in response to those directions. The written submissions are dated 29 February 2024 from the respondent, and 18 February 2024 from the appellant. The appellant provided further submissions dated 4 March 2024 in response to those from the respondent. My directions did not include provision for a response from the appellant, but on reflection they ought to have done. I have, therefore, taken them into account.
11. Although, in summary, s.104(4A) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) provides that an appeal is treated as abandoned if an appellant is granted leave to remain, s.104(4B) allows an appeal on asylum or humanitarian protection grounds to continue if the appellant gives notice in accordance with rule 17A(3) of the Tribunal Procedure (Upper Tribunal) Rules 2008.
12. It appears that leave was granted on 18 January 2024 and the appellant’s representatives were notified of the grant of leave on the same date. Although the respondent’s response to directions dated 29 February 2024 suggests at para 5 that the appellant’s submissions dated 18 February 2024 is, in effect, the notice to continue the appeal pursuant to rule 17A, notice was given to the UT by the appellant’s representatives of the intention to pursue the appeal on humanitarian protection grounds on 19 February 2024 in a separate document, which may not have found its way to the respondent. The appellant’s written submissions dated 18 February 2024 state at para 4 that the appellant “hereby” gives notice of the intention to pursue the appeal on humanitarian protection grounds.
13. The time limit for giving notice is 28 days where the notice of the grant of leave is sent electronically. The notice under rule 17A is, therefore, marginally out of time whichever document from the appellant is considered as the notice. Rule 17A(5), on its face, prohibits the UT from extending time. However, MSU (S.104(4b) notices) Bangladesh [2019] UKUT 412 (IAC) is authority for the proposition that there is power in the UT to extend time for giving the notice to continue the appeal, notwithstanding the clear terms of rule 17A(5).
14. In the light of the minimal delay, the fact that there is no prejudice to the respondent, the respondent’s own dilatoriness in the conduct of the proceedings in the UT, and that the respondent has raised no objection to the notice, I consider that it is appropriate to extend time for the giving of notice under rule 17A. Accordingly, I am satisfied that the appellant is entitled to continue with the appeal on humanitarian protection grounds.
15. I now deal with the only remaining substantive issue, that is whether the appellant is excluded from humanitarian protection.
Assessment and Conclusions
16. The respondent’s decision letter in terms of exclusion from humanitarian protection, dated 22 June 2017, is predicated on the basis that the appellant was sentenced to a term of 12 months imprisonment. However, as is acknowledged in the respondent’s written submissions dated 29 February 2024, the sentence imposed was one of 51 weeks’ imprisonment. That is clear from the sentencing judge’s clarification of the sentence in terms of the requirement for the sentence to have been expressed in weeks, to which I have already referred.
17. Exclusion from humanitarian protection is dealt with in the Immigration Rules at paragraph 339D. As at the date of the decision, that paragraph provided that:
“Exclusion from humanitarian protection 339D.
A person is excluded from a grant of humanitarian protection for the purposes of paragraph 339C (iv) where the Secretary of State is satisfied that:
(i) there are serious reasons for considering that they have committed a crime against peace, a war crime, a crime against humanity, or any other serious crime or instigated or otherwise participated in such crimes;
(ii) there are serious reasons for considering that they are guilty of acts contrary to the purposes and principles of the United Nations or have committed, prepared or instigated such acts or encouraged or induced others to commit, prepare or instigate such acts;
(iii) there are serious reasons for considering that they constitute a danger to the community or to the security of the United Kingdom; or
(iv) there are serious reasons for considering that they have committed a serious crime; or
(v) prior to their admission to the United Kingdom the person committed a crime outside the scope of (i) and (iv) that would be punishable by imprisonment were it committed in the United Kingdom and the person left their country of origin solely in order to avoid sanctions resulting from the crime.”
18. The current version of para 339D is not materially different for the purposes of this appeal but contains the following new paragraph 339D(iv):
“(iv) having been convicted by a final judgement of a particularly serious crime (as defined in Section 72 of the Nationality, Immigration and Asylum Act 2002), constitutes a danger to the community of the UK…”
19. Section 72 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”), so far as material, provides as follows:
“This section applies for the purpose of the construction and application of Article 33(2) of the Refugee Convention (exclusion from prohibition of expulsion or return).
(2) A person is convicted by a final judgment of a particularly serious crime if he is—
(a) convicted in the United Kingdom of an offence, and
(b) sentenced to a period of imprisonment of at least 12 months.”
20. The respondent relies on Home Office policy guidance “Exclusion from humanitarian protection version 6.0” which relates to claims lodged before 28 June 2022, which this appellant’s was. That guidance states that:
“A claimant will not be eligible for a grant of humanitarian protection if they fall to be excluded under paragraph 339D of the Immigration Rules for one of the following reasons:
(i) there are serious reasons for considering that they have committed a crime against peace, a war crime, a crime against humanity, or any other serious crime or instigated or otherwise participated in such crimes;
(ii) there are serious reasons for considering that they have guilty of acts contrary to the purposes and principles of the United Nations or have committed, prepared or instigated such acts or encouraged or induced others to commit, prepare or instigate such acts;
(iii) there are serious reasons for considering that they constitute a danger to the community or to the security of the United Kingdom; or
(iv) there are serious reasons for considering that they have committed a serious crime; or
(v) prior to their admission to the United Kingdom the person committed a crime outside the scope of (i) and (iv) that would be punishable by imprisonment were it committed in the United Kingdom and the person left their country of origin solely in order to avoid sanctions resulting from the crime.”
21. The respondent also relies on the sentencing remarks in relation to the offences of theft and possession of a firearm (a loaded air weapon). The sentencing judge referred to the firearms offence as “an exceptionally serious offence” and that the offence was “so serious” that only a custodial sentence could be passed. There is then reference in the respondent’s submissions to the sentencing judge imposing a sentence of 12 months and 3 months, concurrent, making a total of 12 months’ imprisonment.
22. As already indicated, the respondent’s submissions go on to refer to the sentence actually being one of 51 weeks’ imprisonment. That is because later in the sentencing remarks the judge said that “under the new legislation” he was required to express the sentence in terms of weeks.
23. The respondent’s submission is that irrespective of the length of the sentence, the appellant had committed an “exceptionally serious” offence.
24. The respondent’s position cannot draw any support from the fact that the sentencing judge said that the offence was so serious that only a custodial sentence was appropriate. Legislation and sentencing guidelines require other options to custody to be considered and there is, therefore, a requirement to state that only a sentence of imprisonment is appropriate.
25. That aside, the appellant points out that there is a relevant aspect of the guidance that the respondent has not referred to. This is as follows:
“Immigration Rule Paragraph 339D(iv): Serious crimes
This must be interpreted in a manner consistent with the policy on Exclusion under Article 1F and 33(2) of the Refugee Convention, see section ‘particularly serious crime’.
In deciding whether a crime is serious enough to justify loss of protection, you must take all facts and matters into account, with regard to the nature of the crime, the part played by the accused in its commission, any mitigating or aggravating features and the eventual penalty imposed. Therefore, you must consider the sentence together with the nature of the crime, the actual harm inflicted and whether most jurisdictions would consider the offence a serious crime. Examples of serious crimes include, but are not limited to, murder, rape, arson, and armed robbery. Other offences which might be regarded as serious can include those which are accompanied by the use of deadly weapons, involve serious injury to persons, or if there is evidence of serious habitual criminal conduct. Other crimes, though not accompanied by violence, such as large-scale fraud, may also be regarded as serious for the purposes of exclusion.”
26. Article 33(2) of the Refugee Convention provides that:
“The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.”
27. The Home Office guidance entitled “Exclusion (Article 1F) and Article 33(2) of the Refugee Convention”, dated 28 June 2022 states under the heading “Background” that:
“Section 72 of the 2002 Act (as amended by Section 38 of the 2022 Act) sets out what is considered a ‘particularly serious crime’ for the purpose of applying Article 33(2).”
28. Whilst the respondent’s decision letter dated 22 June 2017 states that “it is now accepted that a 12 month sentence (or more) should not alone determine the seriousness of the offence for exclusion purposes”, citing AH (Algeria) v Secretary of State for the Home Department [2012] EWCA Civ 395, the respondent’s decision in terms of exclusion is predicated on the basis of a sentence of 12 months’ imprisonment. 
29. I am satisfied that the effect of the relevant legislation, as well as the respondent’s own policy guidance is clear in establishing that the appellant is not excluded from humanitarian protection. He has not been sentenced to a term of imprisonment of at least 12 months.
30. In any event, on the facts of this case, bearing in mind the respondent’s guidance, I am not satisfied that the offence(s), in particular the firearms offence, constitutes a serious crime such that he is excluded from humanitarian protection. It is apparent from the sentencing remarks that the appellant did not use the loaded air weapon during the course of the theft, “did not present the gun to anyone within the store” and that it was “merely the security officers who had seen it when it was placed on the floor by you within the private confines of the changing room”.
31. The fact that I have found that the appellant is not excluded from humanitarian protection is not, or not quite, the end of the Upper Tribunal’s decision-making in this appeal. It remains the case that the appellant has indicated the intention to pursue the appeal on humanitarian protection grounds. A decision on whether he is excluded from humanitarian protection is not the end of the process. A decision has to be made on disposal.
32. The respondent has granted the appellant 30 months’ discretionary leave on Article 3 grounds. There is no material difference between Article 3 and humanitarian protection on the facts of this case. The respondent having effectively conceded the appeal on Article 3 grounds, the appeal on humanitarian protection grounds must, therefore, also be allowed. It is only the humanitarian protection ground of appeal with which these proceedings are now concerned.
Decision
33. The decision of the First-tier Tribunal involved the making of an error on a point of law. Its decision having been set aside, I allow the appeal on humanitarian protection grounds.



A.M. Kopieczek
Judge of the Upper Tribunal
Immigration and Asylum Chamber

19/06/2024