Upper Tribunal (Immigration and asylum chamber), 2015-08-10, DA/00775/2014
| Jurisdiction | UK Non-devolved |
| Date | 10 August 2015 |
| Published date | 09 November 2015 |
| Hearing Date | 18 June 2015 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | DA/00775/2014 |
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: da/00775/2014
THE IMMIGRATION ACTS
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Heard at Field House |
Determination & Reasons Promulgated |
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On 18 June 2015 |
On 10 August 2015 |
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Before
UPPER TRIBUNAL JUDGE KOPIECZEK
DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN
Between
Gn
(ANONYMITY ORDER MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr I. Jarvis, Senior Home Office Presenting Officer
For the Respondent: Mr N. Leskin, Solicitor, Birnberg Peirce & Partners
DETERMINATION AND REASONS
1. The Appellant is a national of Ghana, born on 31 May 1970. She arrived in the United Kingdom on 5 March 1976, aged 5, as the dependant of her father and was granted Indefinite Leave to Remain in 1979. On 11 April 2014, the Secretary of State decided to make a deportation order against her under the provisions of section 32(5) of the UK Borders Act 2007. This was following her conviction at Harrow Crown Court on 13 August 2010 of one count of theft and on the same day at Blackfriars Crown Court of one count of theft, one count of battery and breach of a suspended sentence, in respect of which the Appellant was sentenced to a total of 21 months imprisonment. The sentencing Judge noted that the offences “seem to me to have a common matter, stealing from a person in order to fuel your addiction to drugs.” The Appellant did not appeal against her conviction or sentence.
2. She was then served with an ICD 0350AD liability to deportation letter to which she responded by stating that she had lived in the United Kingdom since the age of 6, her parents were British and she had a daughter, A, born on 30 January 1998 who was being cared for by her step-grandmother, CN. On 5 December 2011, after her release on bail, the Appellant was convicted of theft, possession of an offensive weapon and making false representations to make gain, in respect of which she received a community order for 12 months and a drug rehabilitation requirement, with immediate effect. The Appellant entered residential rehabilitation on 5 December 2011 and completed this on 10 September 2012. It was accepted that she has not used drugs or committed any further offences since.
3. The Appellant appealed against the decision to make a deportation order and her appeal came before First Tier Tribunal Judge Brown for hearing on 13 November 2014, when he allowed the appeal under the Immigration Rules and with reference to Article 8 of the ECHR. The Secretary of State sought and obtained permission to appeal against this decision and following a hearing on 30 January 2015, Upper Tribunal Judge Kopieczek found that the First Tier Tribunal Judge had made a material error of law in concluding that it would be unduly harsh for the Appellant’s daughter either to live in Ghana or to remain in the United Kingdom were the Appellant to be deported [30] and that he further erred in law in failing to apply the correct test viz whether there were very significant obstacles to the Appellant’s integration into Ghana, the word “very” being more than mere surplusage [32]. A full copy of the decision dated 17 March 2015 is appended to this determination. The appeal was re-listed for hearing by the Upper Tribunal on the basis that the findings of fact by the First Tier Tribunal were to stand, except insofar as those findings are infected by errors of law.
4. The adjourned hearing came before the Upper Tribunal for hearing on 18 June 2015. Mr Jarvis provided us with copies of the decisions in AM (s 117B) Malawi [2015] UKUT 0260 (IAC); AR (Pakistan) [2010] EWCA Civ 816; Bakaray Danso [2015] EWCA Civ 596; Joseph Grant v United Kingdom (Application no. 10606/07) and a copy of the Appellant’s PNC record. Mr Leskin provided us with copies of the Immigration Directorate Instructions “Chapter 13: criminality guidance in Article 8 ECHR cases” and judgments of the Court of Appeal in AQ (Nigeria), TH (Bangladesh), CD (Jamaica) [2015] EWCA Civ 250 and AJ (Angola) [2014] EWCA Civ 1636.
5. In respect of the findings of the First Tier Tribunal that were to be preserved as not infected by error of law, Mr Jarvis accepted that the finding that the Appellant is socially and culturally integrated in the UK is to stand [39] and the finding that the Appellant enjoys a genuine and subsisting relationship with her daughter [20]. Mr Leskin in his skeleton argument at [63] agreed but further drew attention to the following findings: that the Appellant has lived lawfully in the UK for over half her life (now 39 years out of 45) [30] and noted that the evidence before the First Tier Tribunal was not disputed to any extent.
The oral evidence
6. The Appellant’s statement was considered to stand as her evidence and she was then cross-examined by Mr Jarvis. The Appellant confirmed her address. She confirmed that she still has involvement with Westcliffe House (where she was in residential rehabilitation) in that she speaks to the therapist, PB. She confirmed that her accommodation was supported housing for those mainly who are homeless; that there was not much room at her mother’s house and she felt that she needed more support in her recovery. She confirmed that she sees a counsellor every week at Westminster Drugs Project.
7. She said that her accommodation assists in budgeting and her key worker assists her with her degree, student finance and her wellbeing. They signpost her to various organizations and Westminster Drugs project is one of those. Mr Jarvis asked the Appellant how often she was subjected to drugs testing and she replied that this was random and the last test was at Christmas. The Appellant added that she had chosen that because it keeps her on her toes; that sometimes it is once a month but it is random.
8. She said that since her release from prison in July 2011 she had been living in accommodation where she has support. She said that she has family in London and that her mother lives 10 minutes away from her. She confirmed that her mother and father were originally from Ghana. Mr Jarvis acknowledged that there have been difficulties with the Appellant’s father but asked whether her mother had contact with members of the Ghanaian community in London. The Appellant responded that her mother had relatives in London – aunties and uncles but she had no idea whether or not they visited Ghana. She said that her mother had last visited Ghana when her niece O was 1 – she is 4 now and that O lives here – she is her sister’s child.
9. In answer to a question by Mr Jarvis, the Appellant stated that her mother had gone to Ghana on holiday for 3 weeks and had stayed in a hotel. She said that she did not know whether or not her mother had visited family members or friends. She denied that her mother talked about Ghana when she was growing up and said that her family is not like that. The Appellant stated that she did not even know she was not her real mother for a while and that there are things they do not say to her. She confirmed that her mother speaks Twi but that she did not speak or understand any Twi. She did not think that her brothers and sisters had any contacts in Ghana.
10. In respect of questions from Mr Jarvis as to how she supports herself, the Appellant stated that she works at McDonalds part time while she does her degree. She said that her family did not supply her with any money and that she had not asked them for money as they would not be able to afford it. She said she had not asked them. Mr Jarvis made reference to the letter from AK at page 12 and asked the Appellant whether she knew what he meant by her hard road and difficulties in her relationship with her daughter. She said that she did not know what he meant by that – if he meant the difficulties in getting to where she is now she understood because of the immigration issue but there was no issue with her and her child. She stated that she sees her daughter, “A”, every day; that she lives just around the corner but they did not live together as there is not enough room.
11. Upon re- examination by Mr Leskin, the Appellant stated that she had no sense what Ghana is like as she had not been there since she was 5. Her mother does not really talk about stuff like that with her so she did not know about it. She said that she hardly saw relatives from Ghana – the relatives she sees are from England and live in different parts of London: this was mainly her cousins. Other relatives would come over to her mother’s house from their house but she was not told about this and was not there when they came. She was not aware of people from Ghana who have visited. In respect of relatives in London and whether there were Ghanaian aspects to their life she stated that they go to work, come home and watch TV like everyone else. She did not recall how many times her mother went to Ghana on holiday. She did not recall her going to Ghana on holidays when she was growing up and she was always there in the house with them. She said that she had loads of...
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