JG v The Upper Tribunal, Immigration and Asylum Chamber
| Jurisdiction | Northern Ireland |
| Judge | McCloskey J |
| Neutral Citation | [2019] NICA 27 |
| Date | 06 June 2019 |
| Court | Court of Appeal (Northern Ireland) |
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Neutral Citation No: [2019] NICA 27
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: McC10959
Delivered: 06/06/2019
IN THE COURT OF APPEAL IN NORTHERN IRELAND
________
Between:
JG
Applicant
and
THE UPPER TRIBUNAL, IMMIGRATION AND ASYLUM CHAMBER
Respondent
________
Before: Stephens LJ, McCloskey J and Huddleston J
________
McCLOSKEY J (delivering the judgment of the court)
Introduction
[1] This is an application for leave to appeal to this Court against a decision of the
Upper Tribunal, Immigration and Asylum Chamber (“the UT”) refusing the
application of the JG, (“the Applicant”) for leave to appeal. The background is that
the UT had dismissed the Applicant’s appeal against a decision of the First – tier
Tribunal (the “FtT”) dismissing his appeal against the decision of the Secretary of
State for the Home Department (the “SSHD”) refusing his application, which was
that to deport him to his country of origin would infringe his Article 8 ECHR rights
and those of his family, in contravention of section 6 of the Human Rights Act 1998.
Immigration and Litigation History
[2] The Applicant’s immigration and litigation history have the following salient
features:
(i) He is a citizen of China, aged 40 years, who resided unlawfully in the
United Kingdom from 2006 to 2010, was lawfully resident from 2010 to 2014
and has been unlawfully resident thereafter.
(ii) Having been convicted of a drugs offence in July 2016, the Applicant became
the subject of deportation action on the part of SSHD.
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(iii) The Applicant, as he was entitled to do, resisted the proposed deportation by
advancing a human rights claim based on Article 8 ECHR.
(iv) The decision underlying these proceedings is that of SSHD dated 11 July 2017
refusing the Applicant’s human rights claim.
(v) The public interest in the deportation of foreign national criminals, enshrined
in statute, is the central theme of the impugned decision. In a proportionality
balancing exercise, the decision maker gave this determinative weight. The
evaluative assessment was that this outweighed the private and family life
facts and factors advanced by the Applicant.
(vi) The genuine and subsisting nature of the Applicant's marriage with his
Chinese spouse was accepted. So too his parental relationship with their two
children, now aged 11 and two years respectively. The best interests of the
children were purportedly considered, being weighed alongside the
aforementioned statutory public interest. While some negative impact on the
children flowing from the Applicant’s deportation was acknowledged, this
was considered to be sufficiently counterbalanced by their continuing life
with their mother in the United Kingdom and certain other factors.
(vii) The decision maker considered that the Applicant's relationship with his
spouse was formed in circumstances where his immigration status in the
United Kingdom was precarious.
(viii) The decision maker was required to apply the test of unduly harsh
consequences. He considered that the relocation of the Applicant's spouse to
China would not be unduly harsh, reasoning that she is a citizen of China,
speaks the language, is familiar with the culture and lifestyle and is likely to
have significant ties there.
(ix) The decision maker suggested that the Applicant's deportation to China
would give rise to a joint parental decision to be made. The choice would lie
between the Applicant returning to China unaccompanied and, alternatively,
the entire family transferring there.
(x) The decision maker assessed that the younger child, by reason of her very
tender years, could adapt to life in China with her two Chinese national
parents. However, it was acknowledged that relocation to China for the older
child would be unduly harsh (a necessary legal test to be applied: see infra).
(xi) The decision maker also considered, and rejected, the private life dimension
of the Applicant's Article 8 claim.
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13 cases
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Pearce's (Thomas) Application v Department of Justice
...of the Applicant bearing the burden of proof in judicial review proceedings: See JG v The Upper Tribunal, Immigration and Asylum Chamber [2019] NICA 27 at [34]. [48] Furthermore, there is an abundance of decisions, in the matter of affidavits, emphasising the importance of strict compliance......
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Arturas (Child's Best Interests: Ni Appeals)
...of any relevant consideration of AJ (India) could not affect the binding nature of JG v Upper Tribunal, Immigration and Asylum Chamber[2019] NICA 27 in that jurisdiction. In JG, the Court of Appeal held that a material breach of section 55(3) gave rise to a breach of Article 8 ECHR rights, ......
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CAO v Secretary of State for the Home Department
...the Home Department [2016] UKUT 231 (IAC) at para [27] especially and as noted in JG v The Upper Tribunal, Immigration and Asylum Chamber [2019] NICA 27, at para [36], a breach of the section 55(3) duty may contravene the procedural dimension of Article 8, which is complementary to the subs......
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McCord (Raymond), JR83 and Jamie Waring's Applications v The Prime Minister and others
...50 Second, the Applicants bear a burden of proof. This was highlighted recently in JG v Upper Tribunal, Immigration and Asylum Chamber [2019] NICA 27 at [34]: “ While judicial review proceedings differ sharply from their private law counterpart, there is nonetheless a burden of proof in pla......
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