AH (Jamaica) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lady Justice Sharp,Lord Justice Lindblom |
| Judgment Date | 23 June 2017 |
| Neutral Citation | [2017] EWCA Civ 796 |
| Date | 23 June 2017 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2014/2616 |
[2017] EWCA Civ 796
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Kekic
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Sharp DBE
and
Lord Justice Lindblom
Case No: C5/2014/2616
Mr David Chirico (instructed by Wilson Solicitors LLP) for the Appellant
Mr Rory Dunlop (instructed by Government Legal Department) for the Respondent
Hearing date: 24 January 2017
Approved Judgment
Introduction
This is a second appeal, for which permission was given at an oral hearing, against the decision of the Upper Tribunal (Immigration and Asylum Chamber) ( 'the UT'), promulgated on 4 March 2014, dismissing the appellant's (' AH') appeal against a determination of the First-Tier Tribunal (' the FTT') promulgated on 11 November 2013.
In that determination, the FTT had dismissed AH's appeal on Human Rights grounds against the respondent's decision of 16 May 2013, to make a deportation order against him. The UT found no material error of law in the determination of the FTT and therefore dismissed the appeal.
Background
The facts are dealt with extensively in the decision of the FTT, and it is unnecessary to repeat them. It is sufficient to set out a summary of the salient matters and argument, which I do (with grateful thanks, but without attribution) from the skeleton arguments lodged by the parties.
AH was born on 20 February 1976, and is a national of Jamaica, where he lived until November 2001. He had a son there, who was born in about 1993. On 23 November 2001 AH arrived in the UK, and was granted leave to remain as a visitor. He subsequently obtained leave to remain as a student. On 7 November 2002, AH was stopped by the police in relation to driving offences. He could not give any details of where he had been studying and admitted that his cousin had made the application for leave to remain as a student on his behalf. He was served with a notice of decision that he was an illegal entrant in the sense that he had obtained leave to enter by deception. It is unclear whether at this point AH was removed from the UK (as identified in the Home Office decision letter of 3 June 2013) or whether he returned voluntarily to Jamaica (see the FTT's decision, paragraph 5). Nothing, however, turns on this and it is accepted that AH left the UK on 12 November 2002.
At some point between 2002 and 2004, AH returned to the UK illegally. He then embarked on a relationship with PD, a Jamaican national. On 10 July 2005, AH's first child, JK, was born to PD.
On 25 August 2006, at the Crown Court at Southwark, AH was convicted of 2 counts of possessing class 'A' drugs with intent to supply. He was duly sentenced to concurrent terms of 4 years' imprisonment. He was described by the trial judge as habitually dealing in drugs. On 5 September 2008, AH was notified of the decision to make a deportation order against him. AH appealed this decision on medical grounds, namely an eye condition, but absconded whilst the appeal was being considered. The appeal was dismissed in his absence on 10 December 2008. It is notable that in his grounds of appeal, AH made no mention of JK or PD.
AH had also made an asylum claim on 21 June 2008. He failed, however, to attend successive interviews with respect to his asylum claim and failed to comply with the conditions of his tagging. At the hearing on 10 December 2008, AH's asylum claim was considered but rejected as being neither genuine nor plausible.
On 10 March 2010, AH had a second child, Y, with PD. At about that time, his relationship with PD ended in acrimonious circumstances.
In 2010, AH met AA and began a relationship with her. They married. She had two children from a previous relationship: A who was born on 24 February 1992 (and who was sent to prison in 2011) and K, who was born on 7 December 1997.
In 2012, AH came to the attention of the police again in unfortunate circumstances. He was shot, and with the assistance of his evidence, his attacker was sentenced to 14 years' imprisonment for his attempted murder.
On 2 July 2012, AH made an application for leave to remain. By a letter dated 15 May 2013 the respondent refused the application. AH's appeal was heard by the FTT on 11 October 2013.
It is important to note that the FTT acknowledged at the outset of the determination the truthfulness of the evidence given by AH and various witnesses called on his behalf, including his wife and K; their credibility was not challenged by respondent, and this was accepted without hesitation by the FTT (FTT's decision, paragraph 20). In relation to AH's family life and relationship with his children, the FTT made the following findings at paragraph 20:
a. A strong relationship existed between AH and AA;
b. AH had a strong relationship with AA's children, and in particular, K, given that her natural father was often away in Barbados;
c. AH had a strong relationship with his biological children, whom he saw every week; and
d. Accordingly, AH had established a private and family life in the UK.
However, the FTT considered that any interference with AH's rights under Article 8, ECHR was proportionate and, by a decision promulgated on 11 November 2013, determined that his appeal should be dismissed:
a. Paragraph 396 of the Immigration Rules laid down a presumption in favour of deportation;
b. Paragraph 398(a) of the Immigration Rules applied because AH had been sentenced to 4 years' imprisonment. In consequence, paragraphs 399 and 399A did not apply. (As an aside I should mention, that though that approach was challenged on behalf of AH before the FTT, there was rightly no challenge to it, either before the UT or before us);
c. The FTT then proceeded to consider whether there were any exceptional circumstances in AH's case so as to render deportation disproportionate. It found that the circumstances were not exceptional, so that deportation would not be disproportionate. In reaching its conclusion, the FTT considered: (i) AH's talent as an artist; (ii) the bravery which AH demonstrated in giving evidence against his attacker, having been shot; (iii) AH's explanation for becoming embroiled in drug dealing; (iv) the nature and seriousness of the offences AH had committed; (v) AH's immigration history and 'blatant disregard' for the Immigration Rules of the UK; (vi) the fact that AH had established a family and private life whilst his immigration status was precarious; (vii) the respondent's legitimate interest in maintaining effective immigration control and preventing disorder and crime.
AH then appealed to the UT. By a decision promulgated on 4 March 2014, AH's appeal was dismissed. UT Judge Kekic stated that:
a. The FTT Judge was aware of the strong ties between AH and his children but there were several factors which justified deportation in AH's case (paragraph 6);
b. In a case which is 'finely balanced', it is for the Tribunal to determine how the balance is to be struck between the competing sides (paragraph 9);
c. There was no requirement for the UT to make further findings given that both the oral testimony and the documentary evidence were unchallenged (paragraph 10); and
d. The seriousness of the offence, the length of the sentence and AH's other adverse behaviour over a prolonged period militated in favour of deportation (paragraph 11).
AH's application for permission to appeal was refused on the papers by Kitchin LJ by an Order sealed on 4 July 2014. Following a renewed application on 22 October 2015, AH was granted permission to appeal by Gloster LJ.
Grounds of Appeal
AH's challenge to the decision of the UT is essentially based on one principal ground, namely that the UT ought to have found that the FTT materially erred in law in its approach to considering the welfare of AH's children and stepdaughter. In particular, it is argued that the FTT failed to:
a. Make any findings as to the best interests of AH's children;
b. Treat the best interests of the children as a primary consideration when assessing the proportionality of AH's removal;
c. State what would be in the best interests of the children; and
d. Consider the weight which should be attached to the best interests of the children in determining AH's appeal.
Submissions
Before both the FTT and the UT, AH accepted that there were strong factors weighing in favour of his deportation (the seriousness of the criminal offence of which he had been convicted in this jurisdiction in 2006, and his very poor immigration history). His submission however, was that there were strong factors pointing in the other direction, namely: (i) his complete rehabilitation; (ii) the fact that he survived an attempted murder in the UK and gave assistance leading to the conviction of his attacker; and (iii) his role in the lives of his 2 children and 2 step children.
The material error of law which the FTT is said to have made, is that in considering AH's Article 8 rights, and the proportionality of his removal, the FTT failed to make any or any adequate findings as to the best interests of AH's children; alternatively, it failed to take into account factors relevant to that assessment and the proportionality determination. I am unable to accept either submission.
Mr Chirico for AH submits that the FTT failed to adopt the proper approach to the issue of proportionality in relation to the best interests of the children: see the duties on the decision maker in this respect adumbrated in ZH (Tanzania) v SSHD [2011] UK SC 4; [2011] 2 AC 166, as recently reviewed by Baroness Hale in Makhlouf v SSHD [2016] UKSC 59, at paras 46 and 47. And see further, as to the correct approach Zoumbas...
To continue reading
Request your trial
-
AM (Somalia) v The Secretary of State for the Home Department
...quality in AM's relationship with his family living in the UK; see MN-T (Columbia) v SSHD [2016] EWCA Civ 893) and AH (Jamaica) v SSHD [2017] EWCA Civ 796. On his own evidence, AM was estranged from his entire family, and there was no evidence that he had taken any steps to rekindle his re......
-
Upper Tribunal (Immigration and asylum chamber), 2019-02-06, PA/13530/2017
...1 WLR 207. Para 4 – with reference to Ali v Secretary of State for the Home Department [2016] UKSC 60 paras 36-38 and AH Jamaica [2017] EWCA Civ 796 at para 35, the absence of offending on the part of the claimant since 2007 was not a compelling feature of the case and it was an error to tr......