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IA135422009

IA135422009

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Published by Ursula Martin
Tribunal for Immigration and Asylum of Aso Mohammed Ibraham
Tribunal for Immigration and Asylum of Aso Mohammed Ibraham

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Published by: Ursula Martin on Jan 12, 2011
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01/12/2011

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IAC-FH-KH-V1
Upper Tribunal(Immigration and Asylum Chamber)
Appeal Number: IA/13542/2009
THE IMMIGRATION ACTSHeard at ManchesterDeterminationPromulgatedOn 15
th
November 2010On 10
th
December 2010BeforeSENIOR IMMIGRATION JUDGE TAYLORSENIOR IMMIGRATION JUDGE C N LANEBetweenTHE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and[ ]
Respondent
Representation:
For the Appellant:Mr Barnes, instructed by the Treasury SolicitorFor the Respondent:Ms Vidal of Counsel instructed by Duncan Lewis & Co.Solicitors
DETERMINATION AND REASONS© CROWN COPYRIGHT 2010
 
Appeal Number: IA/13542/2009
1.
 This is the Appellant’s appeal against the decision of DesignatedImmigration Judge McClure made following a hearing at Manchester on 3
rd
November 2009. The Designated Immigration Judge allowed theRespondent’s appeal against the decision of the Appellant made on 29
th
 June 2009 to give directions for his removal from the UK.
Background
2.
 The Respondent is a citizen of Iraq born on 1
st
January 1978. He arrived inthe UK on 31
st
January 2001 concealed in the back of a lorry aftertravelling through Turkey and claimed asylum on the same day. His claimwas refused on 18
th
July 2001 and a subsequent appeal dismissed on 12
th
November 2002.
3.
 The Respondent was detained on immigration matters on 17
th
October2008. On 22
nd
October 2008 the Appellant decided to issue removaldirections against him, and on 9
th
March 2009 permission was granted tothe Respondent to pursue an application for judicial review against thatdecision. The removal directions were cancelled but the Respondentremained in custody on immigration grounds until granted bail on 17
th
April 2009. A further decision to remove was made on 24
th
April 2009.
4.
On 11
th
June 2009 the Respondent’s appeal came before Immigration Judge White. He recorded that both advocates accepted that the decisionof 24
th
April 2009 was not in accordance with the law because the decisionof 22
nd
October 2008 was still extant and the judicial review proceedingswere unresolved. Immigration Judge White allowed the Appellant’s appealto the extent that the matter be remitted to the Respondent to make alawful decision.
5.
 The judicial review proceedings were compromised in a consent orderdated 4
th
June 2009.
6.
 The final decision and the subject of the appeal before DesignatedImmigration Judge McClure was made in a Notice of Decision dated of 29
th
 June 2009. The Respondent had been required to leave the UK by 28
th
November 2002 and had no basis of stay here. It was the Appellant’s casethat the Respondent’s criminal behaviour justified his removal to Iraq.7.The Respondent appealed on the grounds that the decision to remove himwas unlawful as a breach of his rights under Article 8 of the ECHR.
The Appellant’s Criminal History
8.
 The Respondent has committed a number of criminal offences during histime in the UK. On 4
th
September 2002 he was cautioned for criminaldamage.
9.
On 10
th
December 2003 he was convicted and sentenced to twoconcurrent terms of four months’ imprisonment for criminal offencesincluding driving a motor vehicle whilst disqualified, driving without
2
 
Appeal Number: IA/13542/2009
insurance and failing to stop following a road traffic accident. In thatincident a young girl, [ ], was killed.
10.
On 22
nd
December 2003 the Respondent was convicted of a furtheroffence of driving whilst disqualified, driving whilst uninsured and drivingwithout a valid test certificate on an occasion other than when theaccident in which [ ] died occurred.
11.
On 15
th
August 2004 he was cautioned for possession of cannabis.
12.
On 16
th
August 2005 he was cautioned for burglary and theft.
13.
On 4
th
August 2006 the Respondent was again convicted for driving whilstdisqualified and whilst uninsured and ordered to serve a two yearCommunity Supervision Order.
14.
On 13
th
March 2009 he was convicted of offences of harassment, damageto property and theft and was fined.
The Respondent’s Family Life
15.The Respondent resists removal on the grounds that this would bringabout an infringement of Article 8. He says that he commenced arelationship with a British national, [ ], in or about June 2003 and theystarted living together from September 2003. [ ] has two children byher previous marriage, now aged 11 and 12 and they have not had anycontact with their biological father since 2002. The Respondent and [] have two children of their own, [ ] and [ ], who are now aged 4and 3. The Respondent says that he lives with [ ] and the four children,and that he enjoys a close and loving relationship with them which wouldbe severed if he was removed to Iraq.
The Designated Immigration Judge’s Determination
16.
 The Designated Immigration Judge recorded the evidence concerning therelationship between the Respondent and [ ]. It was the Appellant’scontention as set out in her letter of 29
th
June 2009 that the Respondentdoes not enjoy family life in the UK. It was accepted that he was thebiological father of [ ] and [ ] but it was noted that the birthcertificate for [ ], who was born on 11
th
May 2006, showed [ ]’sresidence as being different to [ ]’s. This undermined her statementthat she started cohabiting with him around September 2003. Whilst [ ]’sbirth certificate (she was born on 14
th
September 2007) gives the sameaddress for both parties, the Appellant doubted the Respondent’s claimconcerning the length of cohabitation and the level of emotional andfinancial support which the Respondent provides for [ ] and thechildren.
17.
It was not accepted by the Appellant that the Respondent had shown thatthere was a subsisting relationship with [ ]’s children from a previousrelationship although it was recorded at the time he was taken into
3

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