Y.h.y. (china)(ap) For Judicial Review Of A Decision By The Upper Tribunal (immigration And Asylum Chamber) To Refuse To Grant The Petitioner Permissi
| Jurisdiction | Scotland |
| Judge | Lord Jones |
| Neutral Citation | [2014] CSOH 11 |
| Date | 29 January 2014 |
| Docket Number | P452/13 |
| Court | Court of Session |
| Published date | 29 January 2014 |
| OUTER HOUSE, COURT OF SESSION [2014] CSOH 11 | |
| P452/13 | OPINION OF LORD JONES in Petition of YHY (CHINA) (AP) Petitioner; for Judicial Review of a decision by the Upper Tribunal (Immigration and Asylum Chamber) to refuse to grant the Petitioner Permission to Appeal ________________ |
Petitioner: Caskie, advocate; Drummond Miller LLP
Respondent: Duthie, advocate; Office of the Advocate General for Scotland
29 January 2014
Introduction
[1] The petitioner is a Chinese national who arrived illegally in the United Kingdom in 2006. He was later convicted of being concerned in the supply of cannabis, money laundering offences and possession of false identity documents, with intent. He was sentenced to eight years' imprisonment and recommended for deportation. A further sentence of 25 months' imprisonment was imposed for failure to make payment of a little over £125,000 as required in terms of a confiscation order.
[2] In the foregoing circumstances, the petitioner is a "foreign criminal" within the meaning of section 32 of the UK Borders Act 2007. Section 32(5) requires the SSHD to make a deportation order in respect of a foreign criminal, subject to section 33. Section 33 provides, among other things, that section 32(5) does not apply where removal of the foreign criminal in pursuance of the deportation order would breach a person's convention rights.
[3] On 8 September 2010, while he was still in prison, the UK Border Agency wrote to the petitioner, inviting him to give reasons why he should not be deported from the United Kingdom. Under cover of letter, dated 1 August 2012, a Notice of Decision was served on him, advising him of, among other things, the agency's view that he did not fall within the section 33 convention exception and that he was, therefore, to be deported. (Number 7/1 of process) The petitioner appealed that decision to the First-tier Tribunal ("FTT"). His appeal was dismissed and his application to the FTT for permission to appeal further was refused, as was his later such application to the Upper Tribunal ("UT"). Each of these tribunals was established under the Tribunals, Courts and Enforcement Act 2007 ("the 2007 Act"). It is the decision of the UT that the petitioner asks this court to review.
[4] The petitioner sought to resist removal on article 8 grounds. The FTT was asked to find that the petitioner had "a powerful family life with his wife and children", about whom I shall say more later in this opinion, and that "the extent of that was sufficient to outweigh the right of the state to deport him, as a foreign criminal". (Petition, as adjusted, statement 8)
[5] The rejection of the petitioner's appeal to the FTT was promulgated on 24 December 2012, following a hearing in which oral and documentary evidence was led on behalf of the petitioner, and documentary evidence was led on behalf of the SSHD. During that hearing, it was submitted on the petitioner's behalf that, since 2006 and despite his imprisonment, he had had a family life with HJC (his now wife) and with their sons, LZY, who was born on 17th July 2006, and AZY, who was born on 21 April 2008. In its determination, the FTT rejected that submission for the following reasons:
"15. The Appellant is now married to HJC. He married her whilst he was in prison, on 19th September 2011 ... They did not commence living together until the Appellant was released on bail on 19th October 2012 ... that is just seven weeks prior to the date of hearing.
16. It is not disputed that prior to his release seven weeks ago, the Appellant has been in prison since 21st September 2007. Although the Respondent accepts that prison records show that HJC and L and A visited the Appellant regularly whilst he was in prison ... the period during which it is accepted that this took place has not been stated. We have examined the prison records provided, and we find that regular visits by all three only commenced on 16th January 2010. Prior to that, L visited with his mother frequently in the period of almost three months from 3rd October 2007 until the end of 2007. He then visited only once in the first nine months of 2008, and HJC only visited four times in that period Although the Appellant states that HJC was living in Glasgow and he was incarcerated in England for some of this time and this explained less frequent visits, we do not find that a credible reason to explain the absence of any evidence that A, who is stated to be the biological child of the Appellant, visited him until 16th January 2010 by which time he was nearly two years old.
17. In his witness statement, the Appellant claimed to have known HJC since September 2005. He claims to have fathered L whilst he and HJC were being kept in the same place in Paris by an agent who was arranging their separate travel to the UK. He claimed not to have known that L had been born until he 'caught up' with HJC again in Glasgow in August 2006 (the month after he was born). He claimed to have, thereafter, visited them every weekend (although he lived in Manchester) until he was arrested in September 2007. We found that these assertions were not supported by credible evidence. At the hearing, he claimed to have known HJC since November 2005, not September, and in her witness statement HJC claimed that whilst she met the Appellant in September 2005 in Indonesia, L was conceived when they were staying in Paris in November 2005 for two months. At her previous asylum appeal hearing she claimed that (...) LY (the Appellant's alias) was an agent and the father of her child and that he had forced her to have sexual intercourse with him in Indonesia. But she also claimed that she was pregnant when she left China in October 2005, that is prior to being in Indonesia. The Immigration Judge who dismissed her appeal found that she had lied to the court. She stated in evidence before me that she had, indeed, lied in court. If the Appellant is the biological father of L, as both maintain, it has not been explained why the Appellant has never been registered as his father. Whilst HJC supports the Appellant's claim to have been in a relationship with him since August 2006 and to have been visited by him every weekend, there was no external, credible evidence to support this ... (My emphasis)
18. For all of these reasons we do not accept Mr Templeton's submission that the Appellant and HJC have been in a "long term relationship since 2006". Whilst it was stated by the court in R v SSHD ex party Mellor 2001 EWCA Civ 472 that family life was not necessarily lost as a result of incarceration, in this case there was no credible evidence of family life prior to incarceration. The Appellant and HJC were not married until 19th September 2011 and although family life may include relationships between unmarried adults, there requires to be shown that the couple have made a sufficient commitment (Kroon v Netherlands 1994 ECHR 35) to one another and the question of the existence or non-existence of family life for the purposes of Article 8, is "essentially a question of fact depending upon the real existence in practice of close personal ties" (K v K (1986) 50 DR199 at 207). In assessing whether such unmarried relationships constitute family life the court will look at the length and stability of the relationship, whether commitment to each other has been demonstrated, for example, by the having of children together, the parties' intentions and cohabitation. Prior to the Appellant's incarceration there was no evidence (other than their own assertions) that they were in a relationship or that L was the child of them both, nor was there evidence of cohabitation. (My emphasis)
19. Prior to their marriage on 19th September 2011 there was evidence that they had a child together, namely A who was born on 21st April 2008 but there was no evidence that A visited the Appellant until 16th January 2010 and no evidence of contact or commitment between the Appellant and HJC such as could reasonably be construed as family life. When they married on 19th September 2011, their marriage created, in law, an inference of family life between them. This, together with evidence of regular visits by HJC and A, his biological son (a presumption borne out by his registration as the son of the Appellant and the assertions of both parents that the Appellant is the father) and L, his wife's child, could, just, in our view, be maintained, tenuously as family life. It has also to be borne in mind, however, that, although it has been maintained that the Appellant, HJC and one or both of her children constituted a family for a number of years it was only after HJC had been naturalised as a British citizen on 24th August 2011, that he married her (19th September 2011). There was no explanation as to why the marriage had not taken place before this, if the strength of the relationship was as had been maintained. It also has to be borne in mind that until 19th October 2012, seven weeks ago, there was no credible evidence that either of the children had ever lived with the Appellant. (My emphasis)
20. Our conclusion, therefore, is that we accept that since 19th October 2012 the Appellant, his wife, L and A have enjoyed a family life together, there is little evidence that a family life existed before then, except in the most tenuous sense and certainly not since 2006 as was maintained."
[6] It is accepted by the respondent in these proceedings that the FTT was in error in asserting that the petitioner "has never been registered as (L's) father".
[7] In seeking permission to appeal to the UT, the petitioner's solicitors contended that the FTT "erred in law by not accepting that the family life existed from August 2006 until the date of the Hearing." It is unnecessary, for the purposes of this opinion, to rehearse the details of the submissions advanced in support of that contention, other than to say that they included the following:
"The...
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