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Earlier offences and impact on status in the UK

Posted by Ruken Sahin on October 20, 2016

Earlier offences and impact on status in the UK

Rexha (S.117C – earlier offences) [2016] UKUT 335 (IAC)

This was an appeal heard at the Upper Tribunal (UT) before the Honorable Mr. Justice Dove and Deputy Upper Tribunal Judge Grimes on 24/05/16. The appeal is brought by the Secretary of State (SSHD) against the First-tier Tribunal’s decision to allow Erjon Rexha’s (R) appeal.

Brief Facts:

R is an Albanian national born on 22/01/79. He arrived in the UK on 26/05/96 and claimed asylum. He was granted exceptional leave to remain (‘ELR’) until 21/09/97 and further leave to remain until 25/02/02. Prior to the expiry of his leave, R was convicted for possession with intent to supply 188Kg worth of drugs (cannabis) and was in turn, sentenced to 4 years imprisonment. On 23/05/03, the SSHD served on R a notice of decision of a deportation order under paragraph 364 of the Immigration Rules. R appealed against this decision, which was allowed in a decision promulgated on 22/11/04 by Mr. Bailey.

R was granted discretionary leave to remain in the UK until 08/03/08. He applied for settlement on 25/02/08 on the basis of ten years residence. The SSHD refused the application and R successfully appealed the decision. He was granted further leave to remain until 31/07/11.

During 2010 R was convicted of being in possession of Class A controlled drugs (cocaine). He was given a conditional discharge of 18 months and costs were ordered against him in the sum of £85. On 23/11/12 R was handed over to the Italian authorities having committed an offence in 2002 and had been sentenced to 10 years imprisonment while he was out of the country.  However, the Italian court quashed his conviction and he was released. The criminal proceedings are pending in Italy.

On 02/06/13, R returned to the UK illegally further to an unsuccessful application for entry clearance and a Judicial Review.  On 07/06/13, he submitted an application for discretionary leave to remain. On 15/01/15, while this application was pending, a notice of a decision to make a deportation order was served on R. On 06/03/15, the SSHD refused R’s application and decided that he should be deported from the UK. The decision letter made reference to R’s criminal history and noted that he demonstrated a clear disregard to UK laws despite being aware that he would face deportation if he re-offended.

Appeal to the first-Tier Tribunal (FtT):

The decision of the SSHD to refuse R’s application gave rise to R’s right of appeal under s.82 of the Nationality, Immigration and Asylum Act 2002. The appeal was heard by Judge Bird on 01/09/15 and was ultimately allowed.

The SSHD made reference to s.117(c)(6) of the Immigration Act 1971 which states; (6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.

The SSHD relied on R’s conviction of 2003 and pending trial in Italy. The most recent offence committed by R was in 2010 for which he was given a conditional discharge of 18 months. However, the offence did not attract a period of imprisonment of at least 4 years as noted in s.117(c)(6).

Judge Bird however, made reference to subsection 7 of the Act which states; ‘The considerations in sub-sections (1) to (6) are to be taken into account where a court or Tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.

R’s appeal was allowed on the basis that the deportation order arose as a result of R’s offence in 2010 for which he received a conditional discharge of 18 months. The wording of the paragraph above (in bold) is phrased in the present tense and should not have taken into account any earlier offending.

Appeal to the Upper Tribunal by the SSHD

In view of the FtT’s decision, the SSHD appealed to the UT. The UT made the following findings:

  1. The expression ‘has been convicted’ does not limit the application of s.117 to solely the conviction prior to the and prompting the making of the decision to deport
  2. It is not in the public interest to limit the application of s.117 to solely the conviction prior to the and prompting the making of the decision to deport
  3. The Act itself does not expressly state that only the offence immediately before the decision to deport is to be considered
  4. There will be circumstances where the SSHD may choose to rely on an individuals past criminal history and circumstances she may choose not to i.e. offending while very young/passage of a significant period of time

Conclusion:

Following the observations of the UT, the appeal was allowed and the decision of FtT Judge Bird (16/09/15) was quashed. The matter was remitted to the FtT for it to re-make a decision.