Upper Tribunal (Immigration and asylum chamber), 2015-12-02, DA/01096/2014

CourtUpper Tribunal (Immigration and Asylum Chamber)
Date02 December 2015
Publication Date22 June 2016
Appeal NumberDA/01096/2014
StatusUnreported

Appeal Number: DA/01096/2014


Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: DA/01096/2014



THE IMMIGRATION ACTS



At Field House

Decision and Reasons Promulgated

On 14 September 2015

On 2 December 2015



Before


UPPER TRIBUNAL JUDGE HANSON



Between


THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and


MARTIN SAMA

(ANONYMITY DIRECTION NOT MADE)

Respondent



Representation:

For the Appellant: Mr N Bramble – Senior Home Office Presenting Officer.

For the Respondent: In person.



Decision and Reasons

  1. Mr Sama appeared before the Tribunal in person. He has been represented in the past by Pickup Scott Solicitors who in a letter dated 11 September 2015 wrote:

We refer to previous correspondence. We note there is a further hearing of the appeal on the 14 September 2015 at 2.00 p.m. However we are still without instructions as we advised in our letter dated 5th August 2015 and will not be attending the hearing. As mentioned previously we should be grateful if you would take the content of our letter dated 3rd February, 2015 into account when making the decision whether or not to allow the Home Office appeal.”

  1. The letter of 3rd February 2015 is Mr Sama’s Rule 24 reply to the Secretary of States application for permission to appeal. It states that even if Judge Lloyd made an error of law it was not material. The letter acknowledges that Judge Lloyd made an error in referring to the wrong immigration rules at paragraphs 25-30 of the determination but claims this is not material as on the basis of the findings of fact made by the Judge the appeal would have been allowed applying the correct Rules. The letter sets out the submissions that would be made on Mr Sama’s behalf had the solicitor attended.

  2. Mr Sama was asked why he failed to instruct his solicitors. He claimed he was saving up to meet their fees. The last occasion he saw his solicitor was when they were last in court. Mr Sama claimed to have saved towards the £1,900 required but no proof of this was available. He made enquires of other solicitor to see if they could assist but they too wanted money. No evidence of such enquires has been provided or of a firm willing to represent Mr Sama.

  3. Although Mr Sama would have liked more time it has not been proved it is unfair to refuse the adjournment request. He has had the benefit of legal representation. His previous solicitors have made detailed written submissions on his behalf which shall be treated as a ‘speaking statement’ for him. His is able to answer questions and explain his position as many appearing in person before courts and tribunals have to in light of legal aid cuts. The hearing shall proceed. The overriding objectives considered.

  4. The above respondent, Mr Sama, is a citizen of Sierra Leonne born on the 20 November 1987. He entered the United Kingdom aged 10 to join his father who arrived in 1996.

  5. Mr Sama has a considerable history of criminal activity from November 2004 and was warned about the consequences of his conduct by the Secretary of State in 2007. His immigration history, including details of thirteen convictions for forty one offences and cautions, is set out in the Secretary of States letter prepared by the Criminal Casework Directorate for the purposes of the appeal before the Frist-tier Tribunal.

  6. On 30 October 2012 Mr Sama was convicted at Winchester Crown Court of two counts of burglary and one count of possession of Class B drugs, namely cannabis resin, for which he was sentenced to two sentences of 42 months imprisonment to run concurrent on 27 November 2012. A copy of the sentencing remarks can be found within the Secretary of States appeal bundle.

  7. On 9 June 2014 Mr Sama was made the subject of a deportation order pursuant to UK Borders Act 2007. His appeal against removal was heard by First-tier Tribunal Judge B Lloyd sitting at Columbus House Newport on 10 November 2014.

  8. Judge Lloyd set out his findings from paragraph 48 of the determination. At paragraph 51 it is stated:

Having regard to the evidence before me of the strong family support which the Appellant now enjoys in the UK, the increased closeness and intensity of the relationship with his daughter, what I believe is the unfailing support of his partner Ms Griffin and even it has to be said the support of former partner Ms Spratley, I am drawn to the conclusion that there is a compelling case to allow the Appellant’s appeal on Article 8 grounds.

  1. At paragraph 56 it is stated:

For all these reasons I conclude the removal of the Appellant to Sierra Leone would result in a breach of his rights under Article 8 which would be disproportionate to the need for proper immigration control and the public interest in this case. My view does not lessen the seriousness, historically, of what he has done but looking at the evidence in its totality I do not consider that his deportation is the proportionate solution in this case.”

  1. The appeal was allowed on human rights grounds.

  2. The Secretary of State sought and was granted permission to appeal on the basis it was arguable the judge failed to apply the Immigration Rules in force at the date of the hearing, leading to the judge erring in applying the wrong threshold to Mr Sama’s circumstances and failing to establish his deportation would be unduly harsh or there would be significant obstacles to his re-integration.

  3. Guidance in relation to the approach to be adopted when considering an appeal against a deportation decision has been provided by the Court of Appeal in a number of leading cases. In YM (Uganda) v SSHD [2014] EWCA Civ 1292 it was found that it is the Immigration Rules in force at the date of hearing which are those to be applied.

  4. In MF (Nigeria) [2013] EWCA Civ 1192 the Master of the Rolls indicated that where the “new rules” (in force from 9 July 2012) apply (in a deportation case), the “first step that has to be undertaken is to decide whether deportation would be contrary to an individual’s article 8 rights on the grounds that (i) the case falls within para 398 (b) or (c) and (ii) one or more of the conditions set out in para 399 (a) or (b) or para 399A (a) or (b) applies. If the case falls within para 398 (b) or (c) and one or more of those conditions applies, then the new rules implicitly provide that deportation would be contrary to article 8” (paragraph 35, underlining added). Paragraphs 399 and 399A can be thought of as setting out the exceptions to deportation (see paragraph 14).

  5. In YM (Uganda) v SSHD [2014] EWCA Civ 1292 it was confirmed that the 2012 Rules were a complete code for dealing with a person facing deportation under the Immigration Acts, and who claimed that deportation was contrary to his Article 8 rights.

  6. In MM (Lebanon) and others [2014] EWCA Civ 985 it was said that where the relevant group of IRs, upon their proper construction, provide a "complete code" for dealing with a person's Convention rights in the context of a particular IR or statutory provision, such as in the case of "foreign criminals", then the balancing exercise and the way the various factors are to be taken into account in an individual case must be done in accordance with that code, although references to "exceptional circumstances" in the code will nonetheless entail a proportionality exercise.

  7. In CG (Jamaica) [2015] EWCA Civ 194 it was again confirmed that the Rules relating to deportation constitute a complete code.

  8. In SSHD v AQ (Nigeria) CD (Jamaica) and TH (Bangladesh) [2015] EWCA Civ 25 it was held that when a foreign criminal appealed against a deportation order on the ground that the public interest in his deportation was outweighed by his private or family life in the UK, the tribunal would need to examine the factors that would, under the Respondent's policy in part 13 of the Immigration Rules, outweigh the public interest in deportation. Ultimately, the assessment of proportionality was for the tribunal or the court to make, but national policy as to the strength of the public interest in deporting foreign criminals was a fixed criterion against which other factors and interests had to be measured.

  9. This principle has been reinforced by the Court of Appeal in the more recent judgment in SSHD v Boyd [2015] EWCA Civ 1190 in which the Court set out reference to case law in the following terms:

26. My above remarks would apply to a case that preceded the introduction of paragraphs 398 to 399B of the Immigration Rules. However, these provisions did apply to the decision of the Secretary of State in relation to the Respondent, and were referred to by the First-tier Tribunal. In Secretary of State for the Home Department v AJ (Angola) and AJ (Gambia) [2014] EWCA Civ 1636, Sales LJ set out those Rules at paragraph 9. Having referred to the judgment of...

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