Upper Tribunal (Immigration and asylum chamber), 2016-07-15, IA/09739/2008
| Jurisdiction | UK Non-devolved |
| Date | 15 July 2016 |
| Published date | 19 June 2017 |
| Hearing Date | 12 April 2016 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | IA/09739/2008 |
Appeal Number: IA/09739/2008
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/09739/2008
THE IMMIGRATION ACTS
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Heard at Field House, London |
Decision promulgated on |
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On 12 April 2016 |
On 15 July 2016 |
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Before
The Hon. Mr Justice McCloskey, President and
Deputy Upper Tribunal Judge Norton-Taylor
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
YM
(ANONYMITY DIRECTION MADE)
Respondent
ANONYMITY
Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI2008/269) I make an Anonymity Order. Unless the Upper Tribunal or Court orders otherwise, no report of any proceedings or any form of publication thereof shall directly or indirectly identify the original Appellant. This prohibition applies to, amongst others, all parties.
Representation
Appellant: Ms L Busch QC, instructed by Government Legal Department
Respondent: Mr P Lewis, of Counsel, instructed by Fisher Meredith Solicitors
DECISION
Preliminary
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This appeal having been heard on 12 April 2016, we deferred finalising our decision in order to give the parties’ representatives an opportunity to provide further submissions in respect of the intervening decision of the Court of Appeal in MM (Uganda) – v – Secretary of State for the Home Department [2016] EWCA Civ 450.
Introduction
2. This case is known to many as YM (Uganda) – v – Secretary of State for the Home Department (reported at [2014] EWCA Civ 1292). By its decision promulgated on 10 October 2014, the Court of Appeal allowed the appeal of YM (the respondent in these proceedings) and, exercising its powers under section 14(2) of the Tribunals, Courts and Enforcements Act 2007, set aside the decision of the Upper Tribunal, which had allowed the appeal of the Secretary of State (the appellant in these proceedings) and remitted the appeal to this Tribunal for the purpose of remaking the decision. Aikens LJ, delivering the judgment of the appellate court in which the other two Judges concurred, formulated the framework of the further exercise now to be conducted by this Tribunal at [63]:
“…. I would allow the appeal on the Article 8 ground, but dismiss it on the Article 3 ground. The matter must be remitted to a differently constituted UT, in order to reconsider the Article 8 issues. The UT will have to re-find the necessary facts and apply them to the new statutory provisions and the 2014 Rules.”
His Lordship was referring to Part 5A of the Nationality, Immigration and Asylum Act 2002 (the “2002 Act”) , together with the new versions of paragraphs 362, 397, 398, 399 and 399A of the Immigration Rules operative from 10 July 2014. The contours of the exercise to be performed by this Tribunal at this juncture have been designed accordingly.
History
3. The history of this appeal is a rather protracted one, regrettably so and is summarised thus:
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YM is a national of Uganda, now aged 31 years.
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By a decision made on behalf of the Secretary of State dated 09 October 1993, the application of YM, then aged nine years, for asylum was refused. He was, however, granted exceptional leave to remain in the United Kingdom until 09 October 1994. This period was extended subsequently.
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On 13 March 2001 the Secretary of State granted YM indefinite leave to remain in the United Kingdom.
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By letter dated 11 November 2004, YM received an admonition from the Home Office to the effect that consideration having been given to his recent conviction on indictment for the offence of burglary, while it had been determined not to deport him, this would be reconsidered “…. if you should come to adverse notice in the future ….”
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By this stage YM’s criminal record consisted of an earlier offence of robbery (when aged 14), assault occasioning actual bodily harm (when aged 15) and assaulting three police constables (when aged 18). For the above mentioned further offence of robbery YM was sentenced to detention of 3 ½ years in a Young Offenders Institution. He was released on 18 March 2005.
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Following his release, having converted to Islam while in detention, YM married and he and his spouse now have three sons aged 10, 6 and 4 years respectively.
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On 26 February 2008 YM was convicted of attending at a camp where terrorist training was taking place, contrary to section 8 of the Terrorism Act 2006, on his plea of guilty and was sentenced to imprisonment for 3 ½ years.
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YM was released on licence in June 2008. Meantime, on 22 May 2008, a decision had been made on behalf of the Secretary of State to make a deportation order against him, based on his terrorist conviction and invoking the “conducive to the public good” provisions of the Immigration Act 1971 (as amended) and paragraph 364 of the Immigration Rules.
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YM appealed. By its decision promulgated on 01 July 2009, the Asylum and Immigration Tribunal allowed his appeal under Article 8 ECHR and paragraph 364 of the Rules.
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On 27 November 2009, YM received a further warning, precipitated by his contact with a co-accused in contravention of one of the conditions of his release on licence.
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In December 2009 YM was recalled to prison on the basis of a suspicion of having committed the offence of stolen goods, which did not result in any prosecution and he was subsequently released on licence in January 2010.
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On 05 October 2011 YM was formally cautioned arising out of a so-called “road rage” incident.
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On 23 July 2012, having pleaded guilty, YM was convicted of fraud in connection with an application for motor insurance, being sentenced to a 12 month community supervision order and a driving disqualification of 12 months duration.
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The caution and conviction noted in (l) and (m) above occurred in circumstances where the Upper Tribunal had set aside the decision of the AIT and the remaking decision was outstanding.
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On 23 October 2013 YM was sentenced to a conditional discharge of two years for an offence of criminal damage.
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On 09 May 2013, the Upper Tribunal allowed the Secretary of State’s appeal.
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On 19 June 2014 the hearing in the Court of Appeal took place, followed by the promulgation of its decision on 10 October 2014.
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Between the two aforementioned dates, on 13 August 2014 YM pleaded guilty to making a false statement to obtain motor insurance and breach of a conditional discharge, giving rise to a further community order.
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In the wake of the Court of Appeal’s remittal order and this Tribunal’s ensuing case management directions dated 03 August 2015, further written evidence was adduced on behalf of YM and further representations, including a letter dated 21 March 2016, were provided on behalf of the Secretary of State.
4. The flesh to the headlines in [3] above can be found in [1] – [7] of the decision of the Court of Appeal, which we gratefully adopt:
“[1] YM was born in Uganda on 24 June 1984. He came to the UK with his mother and siblings in 1991 when he was aged six. He obtained indefinite leave to remain in the UK in 2001 when he was 16. His mother and siblings have obtained British nationality, but YM has not. That is because he started to commit crimes when he was 14, his age when he was convicted of robbery. He was subsequently convicted of assault occasioning actual bodily harm when he was 15, of three assaults on constables, committed when he was 18, and of aggravated burglary when he was 19. For this last offence he was sentenced in Croydon Crown Court on 5 September 2003 to 3 years 6 months in a Youth Offender Institution (‘YOI’). On 11 November 2004 YM was warned in a letter from the Secretary of State for the Home Department (‘SSHD’) that a serious view was taken of the aggravated burglary offence and that YM was at risk of being deported if he should ‘come to adverse notice in the future’”.
[2] Whilst in detention in the YOI, YM began seriously to practice Islam, the religion to which he was born. On the day of his release, 18 March 2005, YM married J, a British citizen, in an Islamic marriage ceremony. They have remained married and have had 3 children, who were born, respectively, in December 2005 (IS), October 2009 (AQ) and 25...
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