Upper Tribunal (Immigration and asylum chamber), 2016-01-20, DA/00666/2014
| Jurisdiction | UK Non-devolved |
| Date | 20 January 2016 |
| Published date | 22 September 2016 |
| Hearing Date | 30 November 2015 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | DA/00666/2014 |
Appeal Number: DA/00666/2014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00666/2014
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 30th November 2015 |
On 20th January 2016 |
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Before
UPPER TRIBUNAL JUDGE HEMINGWAY
Between
P A
(anonymity direction MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr S Whitwell (Home Office Presenting Officer)
For the Respondent: Mr D Mold (Counsel)
DECISION AND REASONS
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The Secretary of State has appealed, with permission, against a decision of a panel of the First-tier Tribunal comprising Judge Dineen and Mrs L R Schmitt, JP (hereinafter the “panel” unless otherwise stated) promulgated on 30th March 2015 following a hearing on 1st October 2014, by which the panel allowed the appeal of P A (hereinafter the “Claimant”) against a decision of the Secretary of State of 9th April 2014 to make a deportation order by virtue of Section 3(5)(a) of the Immigration Act 1971. The decision followed the Claimant’s conviction of 7th July 2013 of an offence of causing death by dangerous driving and which led to her receiving, on 27th August 2013, a sentence of sixteen months’ imprisonment.
Immigration History and Background Facts
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The Claimant is an Indian national and she was born on 4th July 1982. She lived her early life in India but, on 4th November 2007, entered the UK with valid entry clearance as the spouse of a man I shall simply refer to as K who, himself, hailed form India but who had entered the UK in 2002 as a work permit holder and had subsequently received a grant of indefinite leave to remain in the UK on 20th June 2006. Subsequently, in fact on 2nd July 2007, he had obtained British nationality. On 7th October 2008 the Claimant gave birth to the couple’s child who I shall simply refer to as D. That child is a British citizen. On 22nd December 2009 the Claimant was herself granted indefinite leave to remain in the UK. It was clearly anticipated that the family would remain in the UK for the foreseeable future. Since the date of the hearing before the panel, the Claimant has given birth to a further child who has also been fathered by K.
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There is no dispute about the fact that the Claimant was a person of previous good character. However, she decided to learn how to drive and passed her driving test on 1st September 2012. Thereafter, on 5th October 2012, she lost control of a car which she was driving and, as a result, two pedestrians, a married couple, were struck and injured. Very sadly indeed the male member of that couple died in consequence of his injuries. It is that which led to the conviction referred to above.
Relevant Legal Provisions
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The relevant legal provisions are Section 117B to D of the Nationality, Immigration and Asylum Act 2002 (the “2002 Act”) and paragraphs 398, 399 and 399A of the Immigration Rules. There is, however, an issue as to whether the version of the Immigration Rules in force at the date of the decision under appeal or the version in force as at the date of the hearing before the panel apply. The way I have set them out below illustrates the relevant differences between the two versions.
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Section 117A to D of the 2002 Act, which came into effect on 28th July 2014, along with the second of the two versions of the Immigration Rules referred to above, provides as follows;
“I17A Application of this Part.
(1) This Part applies where a court or Tribunal is required to determine whether a decision made under the Immigration Acts –
(a) breaches a person’s right to respect for private and family life under Article 8, and
(b) as a result would be unlawful under Section 6 of the Human Rights Act 1998.
(2) In considering the public interest question, the court or Tribunal must (in particular) have regard –
(a) in all cases, to the considerations listed in Section 117B, and
(b) in cases concerning the deportation of foreign criminals, to the considerations listed in Section 117C.
(3) In sub-Section (2), ‘the public interest question’ means the question of whether an interference with a person’s right to respect for private and family life is justified under Article 8(2).
117B Article 8: Public Interest Considerations Applicable in all Cases.
(1) The maintenance of effective immigration controls is in the public interest.
(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English –
(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.
(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons –
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.
(4) Little weight should be given to –
(a) a private life, or
(b) a relationship formed with a qualifying partner, that is established by a person at a time when the person is in the United Kingdom unlawfully.
(5) Little weight should be given to a private life established by a person at a time when the person’s immigration status is precarious.
(6) In the case of a person who is not liable to deportation, the public interest does not require the person’s removal where –
(a) the person has a genuine and subsisting parental relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the United Kingdom.
117C Article 8: Additional Considerations in Cases Involving Foreign Criminals.
(1) The deportation of foreign criminals is in the public interest.
(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(3) In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C’s deportation unless Exception 1 or Exception 2 applies.
(4) Exception 1 applies where –
(a) C has been lawfully resident in the United Kingdom for most of C’s life,
(b) C is socially and culturally integrated in the United Kingdom, and
(c) there would be very significant obstacles to C’s integration into the country to which C is proposed to be deported.
(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh.
(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.
(7) The considerations in sub-Sections (1) to (6) are to be taken into account where a court or Tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.
117D Interpretation of this Part
(1) In this Part –
‘Article 8’ means Article 8 of the European Convention on Human Rights;
‘Qualifying child’ means a person who is under the age of 18 and who –
(a) is a British citizen, or
(b) has lived in the United Kingdom for a continuous period of seven years or more;
‘Qualifying partner’ means a partner who –
(a) is a British citizen, or
(b) who is settled in the United Kingdom (within the meaning of the Immigration Act 1971 – see Section 33(2) of that Act).
(2) In this Part “foreign criminal” means a person –
(a) who is not a British citizen,
(b) who has been convicted in the United Kingdom of an offence, and
(c) who –
(i) has been sentenced to a period of imprisonment of at least twelve months,
(ii) has been convicted of an offence that has caused serious harm, or
(iii) is a persistent offender.”
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Given that, as noted above, an issue which has arisen in this case is whether the panel applied the correct version of the Immigration Rules, it is necessary to note that HC 352 amended paragraphs 398, 399 and 399A of the Immigration Rules with effect from 28th July 2014. The words added by HC 352 are in bold below and the words deleted are crossed and in square brackets. As at the date of the Secretary of State’s decision on 9th April 2014, the Rules that applied were the same as those in force on 27th July 2014, i.e....
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