Stalin Rajaratnam v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice Pitchford,Lord Justice McFarlane |
| Judgment Date | 24 January 2014 |
| Neutral Citation | [2014] EWCA Civ 8 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2013/0657 |
| Date | 24 January 2014 |
[2014] EWCA Civ 8
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Kekic
DA/00478/2011
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Richards
Lord Justice Pitchford
and
Lord Justice McFarlane
Case No: C5/2013/0657
Justine Fisher (instructed by M & K Solicitors) for the Appellant
Samantha Broadfoot (instructed by The Treasury Solicitor) for the Respondent
This is an appeal against a decision of the Upper Tribunal (Immigration and Asylum Chamber) in a case where deportation was resisted on article 8 ECHR grounds based on the relationship between the appellant and his wife. The central issue is whether the judge in the Upper Tribunal ("the UT") erred in law or acted unfairly in reopening and departing from findings of fact made by the First-tier Tribunal ("the FTT") as to the genuineness of the relationship. The case was listed as " SR (Sri Lanka)" but I can see no reason for the maintenance of anonymity.
The appellant arrived in the United Kingdom in or around 2002. He was arrested in 2003 as an illegal immigrant. He then made an asylum claim which failed. Following his re-arrest in August 2004 he was made subject to reporting restrictions, but he absconded and nothing further was heard about him for several years. In January 2009, however, he applied for a certificate of approval for marriage to a British citizen, Mrs Nishanthiny Yoganathan. The certificate was granted and the marriage took place on 12 September 2009. In May 2010 the appellant was convicted on a count of conspiracy to rob, for which a sentence of three years' imprisonment was imposed. This was followed by service of a notice of liability to automatic deportation pursuant to section 32(5) of the UK Borders Act 2007, together with an actual deportation order and a letter giving reasons for deportation.
The appellant's appeal to the FTT against the Secretary of State's decision to make the deportation order was dismissed by a panel determination promulgated on 10 October 2011 ("the FTT's decision"). The appellant was granted permission to appeal to the UT. By a determination dated 2 May 2012 ("the UT's error of law decision") a panel of the UT set aside the FTT's decision for error of law and gave directions for the decision to be remade by the UT. The matter then came before UT Judge Kekic, who held hearings on 16 August and 8 November 2011 and made a determination dated 19 November 2012 by which she dismissed the appeal ("the UT's dismissal decision").
Permission to appeal to this court against the UT's dismissal decision was granted by Beatson LJ on two grounds. In summary, they are that the UT judge erred in law or acted unfairly in reopening and departing from findings of fact made by the FTT and preserved by the UT's error of law decision; and she acted unfairly in refusing to admit further witness statements at the resumed hearing on 8 November 2011.
The FTT decision
There were two main aspects to the appellant's case before the FTT: (1) that deportation to Sri Lanka would expose him to risk of persecution, and (2) that deportation would be in breach of his right to respect for his family life under article 8. The FTT rejected the first aspect in emphatic terms, taking as its starting point the 2004 tribunal determination in respect of the asylum appeal, and concluding that the appellant was simply not to be believed in relation to any of the account he now gave.
The material part of the decision relates, however, to the dismissal of the case under article 8. The FTT said this on the subject:
"29. We look next at the issues raised in relation to family life. It is clear he has formed a relationship with Mrs Yoganathan since 2003 and they have lived together as man and wife for an appreciable time, mainly before marriage but also after marriage which took place in 2009. It is noteworthy, of course, that the Appellant's wife does herself come from Jaffna and although she has got family ties in this country and is a British citizen we do not consider that it would be unreasonable to expect her to go back to Sri Lanka with her husband. There aren't any children that need to be considered at all in this case. If that position did pertain then, of course, there would not be any interference with the Appellant's right to respect for his family life. If he was going back to Sri Lanka on his own then there would be an interference using the 5 stage approach under Razgar and it would be sufficiently marked such as to engage Article 8 in our judgment. However, the interference would in all of the circumstances be lawful and it would be for the maintaining of effective immigration control. The Appellant has been here illegally. He had failed in his asylum appeal and yet he continued to stay on in this country and indeed went on to commit a very serious criminal offence which has led to the current proceedings.
30. Before us the Appellant did nothing but try to minimise his involvement in the conspiracy to rob which we note from the remarks of the sentencing judge was described as a 'very serious conspiracy to rob'. That serves to show the extent to which the Appellant has shown really no remorse or acknowledgment of his of his wrongdoing and does not indicate to us in any way at all that he is going to be steering clear of crime in the future but, so far as his family is concerned, his wife has quite plainly not been able to influence him away from criminal activity and we have no confidence whatsoever that she will do so in the future.
31. The Appellant has committed a very serious offence and he has not shown, as we see it, that one of the exceptions under Section 33 does apply. Most particularly, he has not shown that there will be a disproportionate interference with his right to respect for family life. We consider that as couple they can maintain contact with one another, even if the Appellant is in Sri Lanka and his wife chooses to remain in the United Kingdom but, for the reasons we have said, we do consider that she could accompany her husband if she chose to do so.
32. Quite patently, this Appellant entered into this relationship with his wife and underwent a religious ceremony and then married her knowing very well that he had no permission to stay in this country and in our judgment the right and proper course in this case is for the Appellant to be deported to Sri Lanka …."
The error of law decision
In the course of the UT's error of law decision, reference was made to certain findings of the FTT in respect of family life:
"6. In paragraphs 12, 15 and 16 of the determination the First-tier Tribunal found that the appellant had met his wife in 2003, and had lived with her since 2004. In 2006 they underwent a religious ceremony of marriage and in 2009, having obtained a Certificate of Approval, had a legally binding civil ceremony. The appellant's brother is a citizen of the United Kingdom, but he has no contact with him, and his mother and sister are now in Switzerland. Before he was imprisoned in connection with the offence of conspiracy to rob he had lived with his wife and parents in law. No issue was taken before us with these findings."
Paragraphs 12, 15 and 16 of the FTT's determination, to which the UT referred, in fact formed part of the FTT's summary of the appellant's evidence, rather than constituting findings. But it is apparent from paragraph 29 of the FTT's decision, quoted above, that the FTT accepted the appellant's evidence concerning his relationship with his wife, notwithstanding its wholesale rejection of his credibility in relation to the claimed risk of persecution on return to Sri Lanka.
The reasons why the UT concluded that the FTT's decision should be set aside were as follows:
"12. We have come to [the] view that the determination of the First-tier Tribunal must be set aside. The questions before the First-tier Tribunal relating to rights of the appellant and his wife under article 8 were considered by the First-tier Tribunal, but the determination does not give adequate reasons for the decisions made. The First-tier Tribunal decided that if the appellant went back to Sri Lanka alone then there would be interference with his rights under article 8. They did not go on to explain fully their view of the proportionality of such interference. The public interest in deportation must be evaluated fully always bearing in mind the terms of s.32. The remarks of the sentencing judge must be considered as a whole. We agree that undue weight appears to have been placed on the part in which it was said that this was a serious conspiracy to rob. There is no explanation given of the First-tier Tribunal's view of the offence in the context of the charges which were not proved, of the length of the sentence, which is of course relevant to the overall seriousness of the offence, and of the appellant's conduct in prison. It may be that the First-tier Tribunal did consider all of these matters fully but they have not given sufficient reasoning. We agree that the First-tier Tribunal has not made sufficiently clear findings about the appellant's wife. As there is a lack of factual material about her circumstances, there is also a lack of explanation in the determination of the First-tier Tribunal's reasoning that she could go to Sri Lanka, or alternatively that the family could reasonably be split up."
Having set the FTT's decision aside, the UT made consequential directions...
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