Greenwood (No. 2))

JurisdictionUK Non-devolved
CourtUpper Tribunal (Immigration and Asylum Chamber)
JudgeMr Justice McCloskey,Lindsley
Judgment Date22 September 2015
Neutral Citation[2015] UKUT 629 (IAC)
Date22 September 2015

[2015] UKUT 629 (IAC)

Upper Tribunal

(Immigration and Asylum Chamber)

THE IMMIGRATION ACTS

Before

Mr Justice McCloskey, President

Upper Tribunal Judge Lindsley

Between
The Secretary of State for the Home Department
Appellant
and
Joseph Hilman Greenwood
Respondent
Representation

Appellant: Mr T Melvin, Senior Home Office Presenting Officer

Respondent: Mr M S Gill QC, instructed by Hanswoods Solicitors

Greenwood (No. 2) (para 398 considered)

(i) The exercise of considering whether there are very compelling circumstances over and above those described in paragraphs 399 and 399A of the Immigration Rules must, logically, be preceded by an assessment that the appellant's case does not fall within paragraph 399 or 399A.

(ii) At the stages of both granting permission to appeal and determining appeals, it is essential to expose those cases where, properly analysed, the challenge to the First-tier Tribunal's decision is based on unvarnished irrationality grounds. The elevated threshold for intervention on appeal thereby engaged must be recognised.

(iii) Every application for permission to appeal to the Upper Tribunal should be preceded by a conscientious, considered assessment of the decision of the First-tier Tribunal (“FtT”). Inundation of the Upper Tribunal with permission to appeal applications in every case belonging to a given category is not harmonious with the Parliamentary intention.

(iv) Remittal to the Secretary of State is not one of the disposal powers now available to the FtT, which are threefold: to allow the appeal, to dismiss the appeal or to make a decision the effect whereof is that the Secretary of State either must, or may, make a fresh decision.

(v) The eleventh hour advent of skeleton arguments and Rule 24 Notices is in breach of the Upper Tribunal's procedural rules and is an unacceptable practice.

DECISION AND REASONS
Introduction
1

This appeal has its origins in a decision made on behalf of the Secretary of State for the Home Department (the “ Secretary of State”) dated 27 June 2013, whereby it was determined that the deportation provisions of section 32(5) of the UK Borders Act 2007 (the “ 2007 Act”) apply to the Respondent, a national of Jamaica aged 36 years. The impetus for this decision was the conviction of the Respondent in respect of two counts of possession of Class A Controlled Drugs with intent to supply (crack cocaine and heroin), generating a sentence of five years imprisonment, on 23 September 2011.

History
2

The history is somewhat protracted and we summarise it thus:

  • (a) In April 2002 the Respondent entered the United Kingdom as a visitor and was subsequently granted leave to remain as a student.

  • (b) On 23 January 2004 he was sentenced to 12 months imprisonment having pleaded guilty to possession of heroin with intent to supply and two other drugs possession offences.

  • (c) On 30 April 2004 the Secretary of State decided to make a deportation order against the Respondent.

  • (d) On 26 July 2006 the Asylum and Immigration Tribunal allowed the Respondent's appeal against this decision.

  • (e) There followed the grant of discretionary leave to remain to the Respondent, ultimately expiring on 06 May 2011.

  • (f) Between January and September 2011 the Respondent was detained on remand in respect of certain drugs offences.

  • (g) On 24 June 2011 the Respondent applied for indefinite leave to remain in the United Kingdom based on his marriage to a British citizen on 23 September 2003.

  • (h) On 23 September 2011 the index convictions were made at Bristol Crown Court.

  • (i) On 07 October 2011 the Secretary of State refused the Respondent's indefinite leave to remain application.

  • (j) By a determination promulgated on 09 February 2012 the First-tier Tribunal dismissed the appeal, finding that the Respondent did not satisfy paragraph 287 of the Immigration Rules and, further, that his deportation would not infringe Article 8 ECHR.

  • (k) On appeal, the Upper Tribunal held that the FtT had erred in law in its dismissal of the appeal under Article 8. By its decision promulgated on 19 December 2012, the Upper Tribunal remade the decision, dismissing the Respondent's appeal.

  • (l) Meantime, on 15 March 2012, prior to the grant of permission to appeal to the Upper Tribunal ( supra), the Secretary of State transmitted the customary “minded to deport” letter to the Respondent.

  • (m) This elicited representations on behalf of the Respondent.

  • (n) Next, on 27 June 2013, the Secretary of State decided that section 32(5) of the 2007 Act was applicable and, on the same date, a deportation order was made.

First Decision of the FtT
3

By its decision promulgated on 23 September 2013, the FtT allowed the Respondent's appeal. It did so on the single ground that the deportation order (dated 17 June 2013) preceded the decision to deport (dated 27 June 2013). This decision was based on an analysis of various decisions of the 2007 Act and the Nationality, Immigration and Asylum Act 2002 (the “ 2002 Act”). Having made this conclusion, the FtT declined to determine the second ground of appeal, which was based on Article 8 ECHR. It formulated its decision in these terms:

The Respondent's decision to deport Mr Greenwood dated 24 June 2013 is not in accordance with the law. Given the fundamental nature of the Respondent's error, we remit the matter back to the Respondent for the error to be remedied. We, therefore, do not proceed to decide the substance of the Article 8 appeal. We allow the appeal against deportation to the aforementioned extent only.”

4

We shall comment infra on the FtT's election to decide the appeal in part only.

First Appeal to the Upper Tribunal
5

The Secretary of State was granted permission to challenge the aforementioned decision of the FtT by appeal to the Upper Tribunal which, by its determination dated 04 July 2014, set aside the decision of the FtT. It did so on two main grounds. First, it concluded that there is nothing unlawful where a notice that section 32(5) of the 2007 Act applies postdates the associated deportation order. We highlight the following passages:

[29] ….. The making of the deportation order expressly under section 32(5) is a decision that section 32(5) applies to the case. To treat it otherwise would be bizarre ….

[33] …. [It] is the clearest possible indication that the decision maker has decided that the subsection applies …..

[38] The right of appeal is against the decision that section 32(5) applies. Such a decision is not rendered unlawful by bearing a date after that of the deportation order, either on the basis that the combination of dates necessarily indicates a failure of due process or on the basis that it necessarily indicates that the person giving the reasons was unable fairly to consider the case.”

The Upper Tribunal determined to set aside the decision of the FtT and to order remittal. This was the stimulus for the further, and most recent, decision of the FtT giving rise to the appeal which we must now decide.

6

For completeness, by its order dated 29 April 2015 the Court of Appeal dismissed the Respondent's application for permission to appeal against the last mentioned decision of the Upper Tribunal.

The Most Recent Decision of the FtT
7

The FtT allowed the Respondent's appeal. The basis upon which the judge did so is discernible from the following passages:

[104] …. I find that it would be unduly harsh for the child to remain in the UK without the Appellant ….

[107] I come to the conclusion that at this time and on the evidence now before me there are very compelling reasons over and above those in paragraphs 399 and 399A ….

[109] In the circumstances of this case, the separation of the Appellant from his children and extended family is in the public interest but the strong (and very weighty) public interest in this case is outweighed by the Appellant's interests and those of the children concerned and his partner ….

[110] I find that the Appellant meets the requirements of the Immigration Rules namely that there are very compelling reasons over and above the matters listed in paragraph 399 and 399A which outweigh the public interest in this case.”

Under the rubric of Article 8 ECHR, the Judge's analysis and conclusions continued, containing the following salient passages:

[121] …. It is difficult to see that a decision under the Immigration Rules in this case would justify a different conclusion in respect of Article 8 ….

[122] It is my view that the proportionality considerations under the Immigration Rules and outlined above cover all the factors which the Tribunal should consider under Article 8 ….

[124] In all the circumstances of this case, the separation (ie deportation) of the Appellant from the children and his partner is in the public interest but this is outweighed by the Appellant's interests and those of the children (including step children and wider extended family) and his partner …

[126] In all the circumstances and for the reasons already given above I consider that the decision of the Respondent is disproportionate …

[128] Therefore the Appellant meets the exceptions set out in section 33 (UKBA 2007).”

This Appeal
8

The Secretary of State has been granted permission to appeal against this decision. The essence of the grant of permission is contained in the following passage:

The decision does not show what it is about the circumstances of the Appellant and the children that make it very compelling or unduly harsh. The situation was predictable as were the consequences for the Appellant and his family.”

There is little correlation between the grant of permission to appeal (on the one hand) and the dominant argument which was presented to us on behalf of the Secretary of State (on the other). We permitted this argument to unfold de bene esse. Its substance is that the FtT erred in law in its...

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