Mugwagwa (39) was jailed for 33 months in 2008 after he was convicted of conspiring to supply a controlled drug (heroin). At that time he was a student at the University of Teesside doing a Higher National Diploma course in computing.

He and another African asylum seeker were secretly filmed and recorded as they supplied heroin and crack cocaine in central Middlesbrough. They were seen approaching a customer on Waterloo Road then supplying a wrap of heroin for £6 on Acton Street. Crack cocaine was also sold by the two who claimed to be penniless but were driving around in a black BMW.

On 6 November 2009 Mugwagwa was served with notice of his liability to be deported under the automatic deportation provisions of the 2007 Act and on 23 December 2009 a deportation order was made.  He appealed to the First-tier Tribunal. His appeal was allowed. The Home Office then appealed.

The Tribunal allowed the appeal on the basis that Mugwagwa was a refugee and that his removal to Zimbabwe would breach Article 3 of the European Convention on Human Rights (“ECHR”). 

The Home Office argued that the Tribunal in allowing the appeal on refugee grounds had failed to apply Section72 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”), which stated that despite being a refugee within the meaning of the Refugee Convention, Mugwagwa was nevertheless removable by virtue of Art 33(2) of that Convention because he had been convicted of an offence for which he received a sentence of at least two years’ imprisonment.

Mugwagwa had committed particularly serious crime and  was a danger to the community of the United Kingdom, the Home Office argued.

But Senior Immigration Judge Grubb dismissed the Home Office appeal saying Mugwagwa’s risk to the UK was low.

“The evidence before the Tribunal concerning the appellant’s risk to the community, including the risk of his re-offending, was contained with the OASys Report following an assessment on 26 November 2008.  At page 6 of 39 the report states that the risk of reconviction by the appellant for “other offences”, that is non-violent or sexual offences, within two years of release was “low”.  It will be recalled that the appellant had been convicted of the offence of conspiring to supply a controlled drug, namely the Class A drug heroin. 

“Again, at page 6 of 39, the report notes that the appellant has no history of committing offences of violence or sexual offences.  The report concludes that the risk of re-imprisonment within two years of release is “low”.  Those conclusions are expanded upon later in the report when the circumstances of the appellant are analysed.”

The judge therefore allowed Mugwagwa to stay in the UK.

By Special correspondent