Gosturani (appellant) v The Secretary of State for the Home Department (respondent)

Thursday 12 May 2022

National of Albania but who had claimed on arrival to be from Kosovo. He was granted refugee status and ILR in his Kosovan status. He was sentenced in Italy to 6 years and 6 months imprisonment for living off immoral earnings and blackmail in 2006 and extradited to Italy for those offences in 2012. After re-entering on completion of the sentence, in 2015 he was served with notice of intention that deportation would be considered in the light of the Italian conviction and in January 2018 he was notified of an intention to cancel his refugee status. His human rights claim was refused. Deportation was maintained because he been sentenced to a period of imprisonment of more than 4 years. There had been a series of more minor penalties in the UK mainly for offences relating to driving from 2001 to 2007.

The applicant has 5 British children born in the UK who are now aged 16 to 6.

The FTT dismissed the appeal relating to his human rights claim. Permission to appeal was refused. The UT later granted permission to appeal following successful Cart judicial review proceedings.

In a decision promulgated on 1st June 2021 the UT dismissed the appeal. It was accepted that the FTT erred in law by applying the relevant tests as if the applicant was a foreign criminal when he was not (because the index offence was committed in Italy) and so he was not a foreign criminal for the purposes of paragraphs 398 to 399D. However the FTT had not erred in these circumstances by not reducing the standard of the test of public interest because the sentence related to an offence outside the UK. The FTT had erred as it had made a generalised comparison between the situation of the applicant’s children and a baseline of ordinariness which was later found in HA (Iraq) to be erroneous. However, in the light of HA (Iraq) the judge had erred in evaluation of the expert report. Re-making the decision it found that the applicant had lied to obtain refugee status, had been convicted of a particularly serious crime in Italy and of a series of minor offences in the UK which, taken together, showed a pattern of offending. However given the elapse of time since these offences between 2001 and 2007, they were disregarded in the Hesham-Ali balancing exercise. Although deportation would be harsh for the applicant’s wife and children that harshness was outweighed by the very strong public interest in deportation.

View hearing:

Part 1

Part 2