Israr Shah (Anonymity Direction Not Made) v The Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice Lane |
| Judgment Date | 03 January 2018 |
| Neutral Citation | [2018] UKUT 51 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 03 January 2018 |
[2018] UKUT 00051 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
THE HON. Mr Justice Lane, PRESIDENT
UPPER TRIBUNAL JUDGE Blum
For the Appellant: Mr B. Singh, Counsel, instructed by Messrs Malik Law Chambers (Birmingham)
For the Respondent: Mr I. Jarvis, Home Office Presenting Officer
Shah (‘Cart’ judicial review: nature and consequences)
(1) A judicial review challenge to the decision of the Upper Tribunal to refuse permission to appeal a decision of the First-tier Tribunal is a challenge to the lawfulness of the Upper Tribunal's decision. It is emphatically not an opportunity for a party to raise new grounds of appeal against the decision of the First-tier Tribunal.
(2) Whether or not a person succeeds in obtaining permission of the High Court under CPR 54.7A to judicially review a decision to refuse permission to appeal, with the consequence that the decision is quashed, the Upper Tribunal will need to be satisfied that there is an error of law in the decision of the First-tier Tribunal before that decision can be disturbed. Judicial review grounds which fail to show the decision refusing permission was wrong in law are highly unlikely to lead to such a result.
(3) Those responsible for drafting judicial review grounds which are found by the Upper Tribunal to contain misrepresentations or other falsities may be referred by that Tribunal to the High Court, for consideration whether an explanation is required from the solicitors and/or counsel involved.
The appellant is a citizen of Pakistan, born on 22 April 1978. He arrived in the United Kingdom on 14 March 1981 when he was just under three years old. The reason for his entry was to join his father. In December 1999, the appellant was granted indefinite leave to remain.
The appellant attempted to become a British Citizen by naturalisation in 2005 but was refused by the respondent as a result of his criminal convictions.
The existence of those pre-2005 convictions is acknowledged in paragraph 6 of the decision of the First-tier Tribunal judge, which is the subject of this appeal. There, the judge said that “the appellant's offending history is not in dispute, it is set out here and given the agreement of the parties, and antecedent details before me, I make findings of fact to reflect his relatively lengthy offending history as set out in the Police National Computer Printout provided to me”.
Three convictions, arising after the refusal of the naturalisation application, were said by the judge to be “advanced by the respondent as particularly pertinent”. These are:-
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(1) April 2006: six months custody for four offences of common assault;
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(2) February 2007: twelve weeks custody for assault on a constable;
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(3) March 2016: 40 months custody for robbery.
On 12 October 2016, the respondent served on the appellant a deportation decision, pursuant section 32(5) of the UK Borders Act 2007. The appellant responded with submissions, which were treated by the respondent as a human rights claim. The respondent concluded that the appellant did not forward any exceptions towards automatic deportation containing section 32(5) of the UK Borders Act 2007. The appellant appealed against that decision to the First-tier Tribunal, whose decision we have just mentioned.
The judge's findings and reasons are set out at paragraph 22 to 73 of his decision. The judge noted that the appellant married his wife in Pakistan in 1996. They have three children, born respectively in February 1998. March 2001 and November 2013. The children are all British citizens.
At paragraph 24, the judge noted that he had read the comments of the sentencing judge, who imposed the sentence of 40 months imprisonment for robbery. During the course of the robbery, the sentencing judge noted that the appellant used a weapon, comprising a lump of wood with a spike on the end, which caused injury to his victim. The First-tier Tribunal judge noted that the appellant had an alcohol problem, which the sentencing judge regarded as a mitigating factor, in this particular case.
The First-tier Tribunal judge considered the appellant's remorse to be genuine and that he had become drug-free whilst in custody, in that he was being given methadone to treat his heroin addiction. The judge considered that the appellant's drug and alcohol dependency were long-standing issues. His family had sent him to the Priory Rehabilitation Unit in 2013, in order to try to address the appellant's addictions, but without success.
The support of the appellant from his wife and family had been, in the judge's words, “unfailing and remains constant”. The appellant's father had a nine-bedroom family home where the appellant could live in the future. The judge accepted that the appellant's motivation to address his addiction was “higher than it has been previously”.
Despite all this, the judge found, in paragraph 32, that the length of the appellant's addiction “as corroborated by his lengthy and persistent criminal offending, is significant, the addictions are of long-standing”. Accordingly, despite the express resolve of the appellant, the judge found that there was “a significant risk of relapse from his present progress in custody in view of his previous self-confessed relapse from drug rehabilitation, and previous inabilities to break addictions despite motivation and support to do so.”
The judge noted that in June 2006, the appellant received a decision to make a deportation order, which was subsequently withdrawn. In April 2007, the appellant had received a warning letter after his twelve-week sentence was imposed. This indicated that revocation of the appellant's indefinite leave to remain would be considered if he came to the adverse attention of the authorities. This led the judge to conclude:-
“In my judgment, the perilous consequences of his continued offending were abundantly clear, despite those warnings he was unable to shake the addiction that bedevils him, that is an indicator of the depths of that addiction and is reflected in the risk that I find of further relapses in the future” (paragraph 33).
The judge found that the appellant's marriage was genuine and subsisting. The appellant's wife gave evidence, making clear her commitment. She said she had last been in Pakistan two and a half years ago and that her father and brother remain in that country. However, according to the appellant's wife, “her father only barely gets on with the appellant and could not support him in the event that he had to return to Pakistan”. (Paragraph 34).
At paragraph 35, the judge began his assessment of the position of the appellant's children, bearing in mind the duties imposed by section 55 of the Borders, Citizenship and Immigration Act 2009. In particular, the judge had read “the heartfelt letter of the appellant's older boys”. The judge accepted that the boys “would miss their father deeply, and would wish to help him. They clearly have some insight into their father's difficulties and wish to be able to support him in the future”.
The appellant's oldest child, having become an adult, was “acting to an extent as a father figure in the absence from home of the appellant. But I do not find that he is [in any way] an adequate substitute for his father” (paragraph 36).
The middle child was not behaving well at school. There was evidence that the appellant's absence was having an adverse impact on the child. The judge made a further finding that there would be a “self-evident impact” on the youngest of the children, as a result of the appellant's absence.
The judge, accordingly, concluded at paragraph 38 that it would be in the best interests of each of the children for the appellant to be able to live with the family unit. The judge concluded that the children, having lived their entire lives in the United Kingdom and having no real or practical knowledge of Pakistan, could not enjoy the full support of the welfare state in the United Kingdom, if they were to leave with the appellant. Although regular Skype type contact between the appellant and the children would be possible, it would not remove the risk of adverse impact, as identified by the judge.
So far as the appellant's wife was concerned, the deportation of the appellant would have “a severe impact upon” her marriage. Indeed, the judge found, that, despite contact during holidays and electronic communication at other times, “deportation might be fatal to a marriage”.
At paragraph 43, the judge reiterated the adverse impact which deportation would have on the children, finding additionally that a strain would be placed upon the appellant's wife “as the remaining parent”.
At paragraph 46, the judge noted that the appellant's continuing treatment by medication for his heart. The judge noted that there was no evidence that such medication was unavailable in Pakistan and he found in any event the appellant's family would be able to assist in the funding of such medication.
Applying RG (automatic deport – section 33(2)(a) exception) Nepal [2010] UKUT 273, the judge gave “careful consideration to the factors set out at paragraph 70–73 of Maslov v Austria [2009] INLR 47 ECHR”. (Paragraph 48). Particular care was required in relation to consideration of the Article 8 impact on those who were lawfully resident in the United Kingdom at the time when the offence was committed. The judge noted that the appellant's wife children were lawfully resident at that time.
In paragraph 49, the judge identified that a requirement in Maslov v Austria was to strike a fair balance...
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