Upper Tribunal (Immigration and asylum chamber), 2016-01-26, DA/01220/2013
| Jurisdiction | UK Non-devolved |
| Date | 26 January 2016 |
| Published date | 27 September 2016 |
| Hearing Date | 08 October 2015 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | DA/01220/2013 |
Appeal Number: DA/01220/2013
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/01220/2013
THE IMMIGRATION ACTS
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Heard at Centre City Tower Birmingham |
Decision & Reasons Promulgated |
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On 8 October 2015 |
On 26 January 2016 |
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Before
UPPER TRIBUNAL JUDGE PITT
DEPUTY UPPER TRIBUNAL JUDGE O’RYAN
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
SAFEEN HAMAD
(ANONYMITY ORDER NOT MADE)
Respondent
Representation:
For the Appellant: Mr Smart, Senior Home Office Presenting Officer
For the Respondent: Ms Rutherford, instructed by TRP Solicitors
DECISION AND REASONS
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For the purposes of this decision we refer to the Secretary of State as the Respondent and to Mr Hamad as the Appellant, reflecting their positions before the First-tier Tribunal.
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The Appellant is a citizen of Iraq and was born on 22 January 1961.
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This decision remakes Mr Hamad’s appeal against the Respondent’s decision dated 14 March 2013 to make a deportation order. The re-making follows our decision dated 30 September 2015 and promulgated on 7 October 2015 which found an error of law in the decision of First-tier Tribunal Judge Pirotta and Mr Sandall which allowed Mr Hamad’s appeal against deportation.
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The parties were in agreement that the sole ground of appeal before us was whether the decision breached Article 8 of the ECHR.
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We heard oral evidence from the Appellant, his partner, and her son, T. We heard submissions from Mr Smart and Ms Rutherford. We also had a skeleton argument for the Appellant and the materials already provided for the appeal before the First-tier Tribunal and the error of law hearing before us.
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The somewhat extensive background to this matter is set out in our error of law decision which is contained in Appendix 1. We draw particular attention to [3]-[26] thereof, which need not be replicated here.
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The parties agreed that we should make two corrections to the history set out in the error of law decision.
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At [23] of the error of law decision we indicated that the issue of whether the Appellant applied in time to extend his discretionary leave to remain was still in dispute. There was agreement before us at the hearing on 8 October 2015 that the Appellant did apply in time, his leave expiring on 24 August 2010 and the Respondent’s records showing an entry to the effect that the application was received by 16 August 2010 at the latest.
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At [25] of our error of law decision we suggested that the Appellant did not appeal the decision of 14 March 2014 in time. That was not correct as he did so on 28 March 2013. Due to what appears to have been an administrative error the Tribunal did not process that appeal, a notice dated 21 June 2013 later confirming that the appeal had been lodged in time.
The Law
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A number of statutory provisions now govern the approach we must take in a deportation appeal which raises Article 8 ECHR. These are contained in Appendix 2 hereto.
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It is now well understood that these legislative changes approved by Parliament mandate that when making an Article 8 assessment in a deportation case, great weight falls in favour of the public interest in the deportation of foreign national criminals.
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The exegesis of the President of the Upper Tribunal in the case of Greenwood (No.2) (para 398 considered) [2015] UKUT 00629 (IAC) puts it thus:
“10. In all cases belonging to this sphere, the contest is between the several public interests favouring deportation – deterrence, protecting the public, maintaining firm immigration control and promoting the economic wellbeing of the nation – and the private, personal interests of the offender and, frequently, the members of his family circle. The potency of the public interest in play was emphasised resoundingly by the Court of Appeal in SS (Nigeria) v SSHD [2013] EWCA Civ 550. This theme has continued to chime in further decisions of the Court of Appeal. In LC (China) v SSHD [2014] EWCA Civ 1310, … at [24]:
“The starting point for any such assessment is the recognition that the public interest in deporting foreign criminals is so great that only in exceptional circumstances will it be outweighed by other factors, including the effect of deportation on any children. However, in cases where the person to be deported has been sentenced to a term of imprisonment for less than four years and has a genuine and subsisting parental relationship with a child under the age of 18 years who enjoys British nationality and is in the UK, less weight is to be attached to the pubic interest in deportation if it would not be reasonable to expect the child to leave the UK and there is no one else here to look after him. By contrast, however, where the person to be deported has been sentenced to a term of four years’ imprisonment or more, the provisions of paragraph 399 do not apply and accordingly the weight to be attached to the public interest in deportation remains very great despite the factors to which that paragraph refers. It follows that neither the fact that the Appellant’s children enjoy British nationality nor the fact that they may be separated from their father for a long time will be sufficient to constitute exceptional circumstances of a kind which outweigh the public interest in his deportation. The Appellant’s children will not be forced to leave the UK since, if she chooses to do so, their mother is free to remain with them in this country.”
11. Most recently, in PF (Nigeria) v SSHD [2015] EWCA Civ 251, the Court of Appeal, having emphasised the supreme importance of the tribunal identifying exceptional, or compelling, factors sufficient to outweigh the public interest in deportation, stated at [43]:
“I fully recognise that if the Judge’s factual findings are well founded, they will be a real and damaging impact on his partner and the children; but that is a common consequence of the deportation of a person who has children in this country. Deportation will normally be appropriate in cases such as the present, even though the children will be affected and the interests of the children are a primary consideration.”
We are also mindful of the statement of the Court of Appeal in SSHD v MA Somalia [2015] EWCA Civ 48, at [17], that –
“…. the scales are heavily weighted in favour of deportation and that something very compelling is required to outweigh the public interest in deportation.” “
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In Greenwood, the President of the Tribunal went on to refer to the case of Chege (Section 117D – Article 8 – approach) [2015] UKUT 00165. The head note of Chege states:
“The correct approach, where an appeal on human rights grounds has been brought in seeking to resist deportation, is to consider:
(i) is the Appellant a foreign criminal as defined by s117D (2) (a), (b) or (c);
(ii) if so, does he fall within paragraph 399 or 399A of the Immigration Rules;
(iii) if not are there very compelling circumstances over and beyond those falling within 399 and 399A relied upon, such identification to be informed by the seriousness of the criminality and taking into account the factors set out in s117B.
Compelling as an adjective has the meaning of having a powerful and irresistible effect; convincing.
The purpose of paragraph 398 is to recognize circumstances that are sufficiently compelling to outweigh the public interest in deportation but do not fall within paragraphs 399 and 399A.
The task of the judge is to assess the competing interests and to determine whether an interference with a person’s right to respect for private and family life is justified under Article 8(2) or whether the public interest arguments should prevail notwithstanding the engagement of Article 8.”
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The guidance in Chege is entirely in line with the learning of the Court of Appeal in SSHD v AJ (Angola) [2014] EWCA Civ 1636. That case indicates at [39] the correct approach to the role of the Immigration Rules – that is paragraphs 399 and 399A – in the “very compelling circumstances” assessment:
“39. The fact that the new rules are intended to operate as a comprehensive code is significant, because it means that an official or a tribunal should seek to take account of any Convention rights of an Appellant through the lens of the new rules themselves, rather than looking to apply Convention rights for themselves in a free-standing way outside the new rules. This feature of the new rules makes the decision-making framework in relation to foreign criminals different from that in relation to other parts of the Immigration Rules, where the Secretary of State retains a general discretion outside the Rules in exercise of which, in some circumstances, decisions may need to be made in order to accommodate certain claims for leave to remain on the basis of Convention rights, as explained in Huang and R (Nagre) v Secretary of State for the...
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