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URL: http://www.bailii.org/uk/cases/UKAITUR/2023/UI2022003827.html
Cite as: [2023] UKAITUR UI2022003827
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2022-003827 First-tier Tribunal No: RP/50072/2021 LR/00035/2022 |
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THE IMMIGRATION ACTS
On the 09 October 2023
Before
UPPER TRIBUNAL JUDGE MANDALIA
Between
ARG
(ANONYMITY DIRECTION MADE)
Appellant
and
Secretary of State for the Home Department
Respondent
Representation :
For the Appellant: Mr A Pipe, Counsel instructed by TRP Solicitors
For the Respondent: Mr F Gazge, Senior Home Office Presenting Officer
Heard at Birmingham Civil Justice Centre on 27 April 2023
Order Regarding Anonymity
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.
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
1. The appellant is a national of Iran. He arrived in the United Kingdom on 2 January 2007 and the following day he claimed asylum. The claim was refused on 10 May 2007. In December 2009, the appellant made further representations and on 23 September 2011 he was granted refugee status with leave to remain in the UK until 22 September 2016. He was granted indefinite leave to remain in the UK on 21 January 2017.
2. On 20 May 2019 the appellant was convicted of robbery at Leicester Crown Court and sentenced to a 5 years and 4 months (64 months) term of imprisonment.
3. On 28 April 2021 the appellant was issued with a Notice of intention to revoke his refugee status. Having considered representations from the UNHCR dated 5 August 2021, on 26 August 2021 the respondent made a decision to revoke the appellant's refugee status.
4. The appellant's appeal against that decision was dismissed by First-tier Tribunal Judge Reeds ("the judge") for reasons set out in a decision dated 27 May 2022.
5. The appellant claims that in reaching the conclusion that the appellant has not rebutted the presumption that he constitutes a danger to the community of the United Kingdom, Judge Reed made material errors of law when considering the sentencing remarks, the OASys assessment and the expert evidence that was before the Tribunal.
6. Permission to appeal was granted by First-tier Tribunal Judge Boyes on 19 August 2022.
7. At the outset of the hearing of the appeal before me, Mr Gazge on behalf of the respondent conceded the decision of the First-tier Tribunal Judge is vitiated by material errors of law as set out in the grounds of appeal and must be set aside. He accepts, in particular, that the judge referred to the sentencing remarks, but did but not give sufficient weight to other factors that weigh in favour of the appellant including his previous good character and other matters referred to by the sentencing judge. He accepts that when the decision is read as a whole, the judge fails to conduct a sufficient analysis of all the evidence that was before the Tribunal.
8. In light of the concession made by Mr Gazge on behalf of the respondent, I need not say anything further about the grounds of appeal. The respondent accepts the decision of the First-tier Tribunal must be set aside. It is common ground between the parties that the appropriate course is for the decision to be remade in the Upper Tribunal and to that end, I heard submissions from the parties.
Remaking the decision
9. Before me it is common ground, as it was previously before the First-tier Tribunal, that the issue in the appeal is whether the appellant, who has been convicted in the UK of an offence resulting in an imposition of a 64-month sentence of imprisonment, is to be regarded as having committed "a particularly serious crime and to constitute a danger to the community of the United Kingdom". The consequence of the respondent's decision to certify that the presumption applies, is that on an appeal under s82(1) of the 2002 Act, the Tribunal must begin substantive deliberation on the appeal by considering the certificate, and, if in agreement that the presumption applies, must dismiss the appeal in so far as it relies on the ground that the removal of the appellant would breach the U.K.'s obligations under the Refugee Convention. The presumption is rebuttable.
10. As it is the appellant's conviction that forms the backdrop to the respondent's decision it is useful for me to begin by reference to the sentencing remarks of His Honour Judge Brown which put into context the offence and sentence imposed. He said:
For me, categorising this robbery within the guidelines, and I am using the street and less sophisticated commercial robbery guidelines, this is culpability A. I do not think there is a dispute between the prosecution and defence over that and it is high culpability because you produced a knife in the way I have described and I make it plain that this is a knife that you had with you and took with you into that room when you met that lady.
... It is not category 1, I agree. Ms Gohill argues for category three but the injuries to this woman are more than fitting the description, "no" or "minimal physical or psychological harm". No, the injuries are greater than that. I have seen the bruises. The ordeal itself involved you both - you put her against the wall and you both wrestled on the floor as she fought for her bag and you were determined to overcome her. This is category 2.... That means a starting point, A2, is five years imprisonment after a trial.
I am required to look at the aggravating and mitigating features. The statutory aggravating factors; you have two previous convictions but I agree with Ms Gohill that they are not convictions that affect my approach to sentence here today. They are of a very different nature, making off without payment and threatening behaviour.
Other aggravating features; I think there was a degree of which this can be said to be prolonged. It was all over within 10 minutes and one has to retain a sense of perspective about this as Ms Gohill rightly submits but this is not one punch and over or a snatch and you disappearing. You wrestled her to the floor and you overpowered her. I think the location which is a hotel room where she would have felt isolated because there was for obvious reasons a degree of anonymity about both of you being there which you both wanted, and she is vulnerable . She is vulnerable both because of the nature of work she carries out and because of the state of undress that she was in when you robbed her.
Looking at the mitigating features, as rightly pointed out, there are no relevant or recent convictions. I agree with that. I also agree that it is right to say there was no significant planning here. I agree with Ms Gohill over that and indeed Mr Thomas accepts that in the way he puts it to me. There is no similar conduct in your past behaviour and I am told there is some remorse from you as you stand before me.
I am told there are potential consequences for your status as a refugee depending upon the length but it seems to me the right approach for me to take is just to pass a sentence that seems to me to be the right sentence on the facts of this case without regard to the consequences, whatever they will be, and that is what I am going to do.
Having regard to the aggravating and mitigating features, I adjust the starting point in this case. The right sentence that I would have imposed if this had been after trial would have been six years imprisonment for this robbery.
You are entitled to credit. I am asked to consider carefully whether to give you more than 10% credit. It is pointed out by Ms Gohill, again correctly, that because your plea is before the start of this trial, the complainant has not had to relive it in the witness box and I agree with that. But, on the other hand, your plea is on the day of trial and she was ready to give evidence and has been put through the anxiety of the wait right up to the door of the court and the day of the trial. I think it is a 10 per cent case. In fact, I am going to round the figures out slightly so you are going to get very slightly more than 10 percent. I impose a sentence of sixty-four months. That is 72 months less credit for plea, so 64 months is the sentence on count 2. That is five years and four months.
I should say this, that I have also considered whether to treat this man as dangerous and pass an extended sentence. I have decided he does not fulfil the criteria. I have considered it and it is not appropriate in this man's case, so it is a determinate period of five years and four months.
.... I say nothing about refugee status or deportation that does not need a comment or a recommendation from me. That is a matter, as I understand it, for the Secretary of State...."
11. The appellant was notified that in light of his conviction, the respondent is considering revoking his refugee status. He was provided with an opportunity to submit representations setting out any reasons why his refugee status should not be revoked. The UNHCR was approached on 13 May 2021 and submitted a response dated 5 August 2021. Having considered the representations made, on 26 August 2021 the respondent made a decision to revoke the appellant's refugee status. The decision is a matter of record and I do not burden this decision with a recital of the reasons set out by the respondent. It is sufficient to note that the respondent referred to the sentencing remarks of His Honour Judge Brown and said that the offence is one which is regarded as particularly serious and the gravity of the offence is evident from the long period of imprisonment which the Court saw fit to impose. The respondent considered the representations made by the UNHCR but concluded the appellant has failed to rebut the presumption that he has been convicted of a particularly serious crime and his continued presence in the UK constitutes a danger to the community.
12. Mr Pipe adopts his skeleton argument and submits that His Honour Judge Brown considered whether to treat the appellant as "dangerous and pass an extended sentence", but decided that the appellant does not fulfil the criteria. Mr Pipe candidly accepts that the 'criteria' applied by the judge and the reasons why the judge decided the criteria is not fulfilled are not apparent. Mr Pipe points to the mitigating factors that were referred to in the sentencing remarks including the fact that there are no relevant or recent convictions, and there was no significant planning. Mr Pipe also refers to the representations made by the UNHCR. The UNHCR were of the opinion that the respondent had failed to conduct a comprehensive assessment in the appellant's case and had failed to consider the nature and extent of the risk posed by the appellant. Mr Pipe also points to the expert report of Lisa Davies, a Consultant Forensic Psychologist, dated 19 December 2021. She was instructed to assess the risk of reoffending and risk of harm presented by the appellant. She concludes the appellant poses a low to moderate risk of future violent offending, a low static risk of sexual offending, that there is a moderate to high degree of protection against future or general violence with a range of protective factors present at the current time. She agrees with the sentencing Judge that the appellant did not fulfil the criteria for an extended sentence, and that the structured tools indicate a low to moderate risk of future offending. Finally Mr Pipe refers to the OASys assessment which demonstrates the appellant poses a low risk of reoffending, and the letter from the appellant's Offender Manager confirming the appellant has been compliant with his licence conditions, his behaviour in custody was good, and that the appellant had wanted to do offence-based work in custody but was not eligible.
13. Mr Pipe drew my attention to an email sent by Jennifer Thompson, to the appellant's solicitors on 26 April 2023. In that email, Ms Thompson confirms the appellant's compliance has been exemplary. He was unable to complete any offence focused work whilst in custody, but he has since completed risk reduction work whilst in the community with her. He is "currently assessed as medium risk of serious harm, low risk of general reoffending and low risk of violent offending". She refers to a change in the appellant's circumstances in that he is now employed as a bookkeeper. That is a positive step and is viewed as a protective factor in relation to risk management within the community. There is no evidence to suggest the appellant has been in 'offence paralleling behaviors' since his release. Mr Pipe submits that the evidence before the Tribunal establishes the appellant does not constitute a danger to the community of the United Kingdom and the presumption under s72 of the 2002 Act is rebutted.
14. In reply, Mr Gazge refers to the OASys Assessment dated 26 October 2021 in which the appellant was assessed to pose a high-risk to the public in the community, with a risk of serious harm specifically to sex workers and individual's the appellant pays for sexual activities. As far as the subsequent assessment by Lisa Davies is concerned, Mr Gazge submits that under the section on Forensic History, Lisa Davies refers to the appellant's three recorded convictions. He submits that when discussing the index offence it is clear the appellant denies important aspects of the crime that he committed. Lisa Davies concludes the appellant presents with a low to moderate risk of future violent reoffending. Mr Gazge submits the risk may have reduced, but a risk nevertheless remains. Mr Gazge invites me to find that the presumption under s72 of the 2002 Act has not been rebutted and the appeal should therefore be dismissed.
Decision
15. The conviction for robbery in respect of which the appellant was sentenced to a 64-month term of imprisonment is a particularly serious crime. By operation of s72(5A) of the 2002 Act, he is presumed to constitute a danger to the community of the United Kingdom. That, as set out in section 72(6), is a rebuttable presumption. If the Tribunal agrees that the presumption applies, it must dismiss this appeal. The issue between the parties is whether the appellant constitutes a danger to the community of the United Kingdom. That requires an evaluative judgement by the Tribunal based all the evidence before me. In reaching my decision I have regard to the evidence relied upon by the appellant as a whole.
16. I have considered the remarks made by the sentencing judge. The judge confirmed he had considered whether to treat the appellant as dangerous and pass an extended sentence. The judge decided the appellant does not fulfil the criteria. The criteria that the judge had in mind is not clear. In her report, Lisa Davies states:
"7.10 [The appellant] was sentenced to a Determinate Sentence. I note that the Sentencing Judge gave consideration to imposing an extended sentence for public protection but did not consider [the appellant] to meet the criteria for an extended sentence. Extended sentences are imposed when the court has found that the offender is dangerous, and an extended licence period is required to protect the public from risk of serious harm. I would concur with the assessment that was made by the Sentencing Judge..."
17. Although Lisa Davies may concur with the assessment of the sentencing judge, she is unable to assist the Tribunal with the reasons why the Judge, when sentencing the appellant, concluded the criteria were not met. Even on her simplistic understanding of the criteria as set out in her report there are two strands. First, there must be a finding that the appellant is 'dangerous' and second, an 'extended licence period is required to protect the public from risk of serious harm'. His Honour Judge Brown simply stated he does not fulfil the criteria without further elaboration. In any event, the question whether the offender is dangerous and an extended licence period is required to protect the public from risk of serious harm, is not the same as the question whether an offender constitutes a danger to the community of the United Kingdom. In the present context, Parliament has expressly said that a person is convicted of a particularly serious crime if he is convicted in the United Kingdom of an offence, and sentenced to a period of imprisonment of at least 12 months. There is a rebuttable presumption that the person constitutes a danger to the community of the United Kingdom. In reaching my decision, I have however borne in mind the observation made by the sentencing judge that the criteria for an extended sentence were not met.
18. Mr Pipe is quite right to say that there were mitigating factors that were accepted by the judge including the lack of any relevant or recent convictions, no significant planning, and some remorse. I have borne those mitigating factors in mind that bear upon the question whether the appellant constitutes a danger to the community.
19. The appellant's plea and the remorse expressed by the appellant when he was sentenced must be considered in the context of what the appellant told Lisa Davies. When addressing the index offence, Lisa Davies records that she spoke to the appellant regarding his circumstances at the time of the events and she recorded in paragraph 3.1.10, the appellant's account of events. In paragraph 3.1.11 of her report she records that the appellant denied the use of any violence against the victim. She asked the appellant about the presence of a knife and he claimed he has never possessed a knife in his life and never carried a knife outside his home. He denied taking a knife with him to the hotel and said there is no evidence to indicate that he had a knife at the hotel. He denied making the threats to kill the victim. The appellant's account as set out to Lisa Davies is at odds with the outline of the offence set out in the sentencing remarks. The Judge said the appellant had robbed his victim at knifepoint and threatened her with it. The Judge said he had seen the marks shown in photographs of the injuries to the victims arms and her upper chest area.
20. In the OASys report dated 26 October 2021 prepared shortly after the appellant's release, it is said (section 11.12) that the appellant's behaviour generally appears to be thought out rather than impulsive. He was assessed as having a sense of entitlement and feels that he should be able to have what he wants, no matter who else is affected by this. His behaviour in custody is noted (section 12.9) to have been good and the assessment confirms he did want to do offence-based work but was not eligible whilst he was in custody. During the self assessment (Layer 3) he said he is "definitely not" likely to offender in the future and that he appreciates his freedom and has learnt his lesson. The OASYs Assessment concluded (section group R10.1) the appellant presents as a 'high' risk of serious harm in the community, specifically to sex workers and individuals the appellant pays for sexual activities. He presents as a low risk of serious harm to adults and children. It is said that the risk is likely to increase when he is in the community with access to sex workers. The appellant claimed that he has no intention of using sex workers. The risk is likely to be reduced when he has a reduced motivation for the use of sex workers and upon completion of offence focused work to gain a greater understanding of the impact of his offending.
21. In a subsequent email dated 27 October 2021, Janet Green, the appellant's Offender Manager confirmed the appellant's licence conditions and that since his release he has complied with those conditions. She went on to say that the appellant has not completed any offence focused work in custody, and continued to minimise his behaviour not fully accepting responsibility for the offence. She identified the conditions in which the risk would be greatest, including access to sex workers, when his sexual desires are not fulfilled in a safe way and when carrying a weapon.
22. There are two emails in the evidence before me from Jennifer Thompson, who has been the appellant's Community Offender Manager since January 2022. In the first of her emails dated 26 April 2022, she confirmed the appellant's compliance has been excellent. She confirmed the OASys assessment has been reviewed and the risk to the public has been reduced to 'medium'. She indicated that if the appellant's level of engagement and compliance remains, she proposed to put him forward to be considered for 'Probation's Peer Mentoring Scheme'. In her most recent email to the appellant's solicitors dated 26 April 2023, Jennifer Thompson confirms the appellant's compliance has been exemplary and that since his release he has completed risk reduction work whilst in the community with her. She states the appellant is currently assessed as "medium risk of serious harm, low risk of general reoffending and low risk of violent offending". She states his personal circumstances have changed in a positive way as he is now employed as a bookkeeper, and that is viewed as a positive factor in relation to risk management within the community.
23. Lisa Davies has provided a comprehensive report, having interviewed the appellant on 21 December 2021 for three hours and thirty minutes, using remote video conferencing facilities. She concluded that a structured assessment:
a. Indicates a low to moderate risk of future violent reoffending at the current time (i.e. assaults, robbery). The risk would be increased in the event that he returned to the use of sex workers and felt aggrieved or vengeful at not receiving the service that he paid for or if feeling angry and embarrassed when experiencing sexual health problems, having paid for sex.
b. Indicates a low level of static sexual offending risk;
c. Indicates a low to moderate risk of future sexual offending at the current time. An increase in the risk of sexual violence could occur in the event of the appellant experiencing sexual health problems, using sex workers or escorts as a means of seeking sex and intimacy, and feeling aggrieved when he perceives that he has not received the service that he paid for, or experiences shame and embarrassment at his sexual difficulties. There are no overt indicators of current deviant sexual interests, a preoccupation in sex or interest in non-consensual and coercive sexual activity, all of which would indicate an increased risk of sexual recidivism.
d. Indicates that there is a moderate to high level of protection against future sexual or general violence with a range of protective factors fully present at the current time that could assist the appellant to desist from further offending if allowed to remain in the UK.
24. Lisa Davies noted the appellant reports no intentions to use escorts or sex workers in the future and that the appellant is keen to engage with employment opportunities and employment would be a protective factor. She recommended the appellant access support through his GP in relation to his sexual health problems and in her opinion, the appellant would benefit from a referral to IAPT services to explore his emotional and sexual functioning and past experience of trauma. In her report (5.4.17) Lisa Davies noted that in the last year, there had been continued denial by the appellant of the use of violence, threats or force in the commission of the index offence. She states however that research no longer supports the assertion that denial is a risk factor for further offending. She states that clinical assessment does not suggest that the appellant holds overt attitudes or beliefs supportive of sexual violence and there are no pervasive attitudes of entitlement or vengefulness. Lisa Davies concludes, at [7.14];
"Having reviewed the evidence contained within the documents available and my own clinical assessment of [the appellant] on 2nd December 2021, in my psychological opinion, it is considered that [the appellant] currently presents a low static risk for sexual recidivism. With regards his dynamic risk of reoffending, he is assessed as presenting a low to moderate risk of further violence and a low to moderate risk of sexual reoffending. His risk would be reduced in the event that he abstains from seeking sex from escorts and addresses his difficulties with erectile dysfunction. In my opinion, he would benefit from a referral to IAPT services through his GP for further exploration of his sexual health problems, psychological functioning and past experience of trauma. In the event that [the appellant] were to reoffend, he could cause serious harm to another. This risk would be increased by the presence of weapons. However, the likelihood of [the appellant] reoffending is assessed as falling in the low to moderate range at the current time, with a moderate risk of serious harm.
25. It is clear from the evidence before me that the risk posed by the appellant is increased in the event that he returned to the use of sex workers and felt aggrieved or vengeful at not receiving the service that he paid for. At the time of the appellant's release from custody he was assessed as presenting a 'high' risk of serious harm in the community, specifically to sex workers and individuals the appellant pays for sexual activities, albeit he presents as a low risk of serious harm to adults and children. In her report prepared in December 2021, which I find to be methodical and reasoned, Lisa Davies concluded there is a low to moderate risk of future violent reoffending. She accepts that in the event that the appellant were to reoffend, he could cause serious harm to another. The latest evidence from the appellant's Probation Officer, Jennifer Thompson confirms the appellant is currently assessed as "medium risk of serious harm, low risk of general reoffending and low risk of violent offending".
26. I have had regard to the representations made by the UNHCR. The UNHCR state that for the exception to refoulement to apply, the danger must be very serious. Such an assessment must go beyond the existence of a past crime and must turn on an assessment of the present and future danger posed by the appellant. At a minimum, an assessment of future danger must include the nature and circumstances of the criminal act, when the crime was committed, the motivation of committing it, and any mitigating factors. It is said that the papers presented to UNHCR do not indicate that a comprehensive assessment has taken place in the current case. The UNHCR noted that the respondent appears to have considered the Sentencing Remarks and urges the consideration of the representations made on behalf of the appellant. The respondent was encouraged to obtain further information and to consider any previous and future representations before making a decision in this case. Whether the s72 presumption is rebutted clearly must be decided on a case-by-case basis.
27. In my search for the answer to the question whether the appellant constitutes a danger to the community of the United Kingdom, I have been careful not to impose a requirement that there is no, or only a minimal risk of the appellant reoffending. The requirement that the appellant constitutes a danger to the community of the United Kingdom plainly requires more. I have borne in mind throughout the wide canvas of evidence before me regarding the particular circumstances in which the appellant poses a risk and the extent to which that risk can be categorised as the appellant constituting a danger to the community. I acknowledge that since his release from prison the appellant has engaged with services and that he has completed some work to reduce the risk. That is amply demonstrated by the fact that upon release the appellant was considered to pose a 'high risk' of serious harm in the community, specifically to sex workers, whereas with the passage of time and the opportunity to complete work with his Probation Officer, the risks have reduced. He is now assessed as "medium risk of serious harm, low risk of general reoffending and low risk of violent offending". A 'medium risk' acknowledges the appellant has the potential to cause serious harm but is unlikely to do so unless there is a change in circumstances.
28. In reaching my decision, I have had regard to the nature and circumstances of the index offence as set out in the sentencing remarks and elaborated upon in the OASys assessment and the report of Lisa Davies. The account given by the appellant of events is in contrast to the account of events set out by the victim and recorded in the OASys assessment. The prosecution for the charge of 'rape' did not proceed and was left, for pragmatic reasons' to lie on file. I have proceeded upon the basis of matters as set out in the sentencing remarks only which reflect the offence for which the appellant was convicted.
29. I have borne in mind the fact that the appellant is now in employment and that is recognised to be a protective factor. I have also had regard to the protective factors referred to by Lisa Davies. I accept the appellant has not engaged in any criminal conduct since his release from prison, and has engaged well with the Offender Manager. It is right to note that the appellant remains subject to licence conditions and supervision by the probation service. There is no evidence before me to establish that the appellant has sought any referral from his GP or sought to address any sexual health problems or seek services to explore his sexual function and past experiences of trauma as recommended by Lisa Davies.
30. The index offence is the appellant's third conviction. The previous two convictions were not relevant for the purposes of sentencing the appellant for the index offence. The first conviction was in 2009 when the appellant was convicted of using racially threatening words or behaviour. That was, at a time when the appellant claims his understanding of the English language was poor. The second conviction was in 2014 when the appellant was convicted of making off without payment and relates to an incident during which the appellant claims he hadn't been provided with the services promised. There was no offending for a period of about four years between 2014 and the index offence that occurred in November 2018.
31. It is to be noted that the offence committed by the appellant in 2014 related to an event in which the appellant claims that he did not receive the services he had been promised. That bears some similarity to the events the appellant claims led to the index offence albeit in entirely different circumstances. During both incidents, in entirely different contexts, the appellant felt that he had not received what had been agreed would be provided.
32. I have taken into account and accept the evidence of Lisa Davies that there is a low to moderate risk of reoffending. However whilst that risk is 'low to moderate', the experts acknowledge that there is a moderate risk of serious harm. In her report, Lisa Davies acknowledges that if the appellant were to reoffend, he could cause serious harm to another, a risk that would be increased by the presence of weapons. The appellant has previously abstained from any offending between 2014 and 2018. The index offence concerns an attack at knifepoint and yet the appellant maintained throughout his discussions with Lisa Davies he did not use a knife and that he has never possessed a knife in his life and never carried a knife outside his home. Although denial may not be a risk factor for further offending, I am not satisfied from the evidence before me that the appellant appreciates the consequences of his actions and the potential impact on a victim, at times when he does not receive what he considers he is entitled to.
33. In the end, standing back and looking at the evidence before me holistically and in the round, giving due weight to the evidence of the experts, I am not satisfied that the appellant has rebutted the presumption that he constitutes a danger to the community of the United Kingdom.
34. It follows that I dismiss the appeal.
Notice of Decision
35. The decision of First-tier Tribunal Judge Reed is set aside.
36. I remake the decision and I dismiss the appeal.
V. L Mandalia
Upper Tribunal Judge Mandalia
Judge of the Upper Tribunal
Immigration and Asylum Chamber
12 September 2023