Upper Tribunal (Immigration and asylum chamber), 2015-06-22, DA/01462/2013
| Jurisdiction | UK Non-devolved |
| Date | 22 June 2015 |
| Published date | 03 September 2015 |
| Hearing Date | 25 March 2015 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | DA/01462/2013 |
Appeal Number: DA/01462/2013
IAC-fH-nl-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: da/01462/2013
THE IMMIGRATION ACTS
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Heard at Birmingham |
Determination & Reasons Promulgated |
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On 25 February 2015 & 25 March 2015 |
On 22 June 2015 |
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Before
UPPER TRIBUNAL JUDGE KOPIECZEK
Between
lml
(ANONYMITY DIRECTION made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms D Revill, Counsel instructed by Peer & Co
For the Respondent: Mr N Smart, Senior Home Office Presenting Officer
DETERMINATION AND REASONS
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The appellant is a citizen of Jamaica, born on 24 October 1967. She arrived in the UK in 2000 as a visitor. In due course, on 19 January 2010, she was granted indefinite leave to remain with her three children.
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On 15 July 2013 a decision was made to deport the appellant under the automatic deportation provisions of the UK Borders Act 2007. This was a result of her conviction on 19 March 2012 in the Crown Court at Wolverhampton for an offence of unlawful wounding, for which she received a sentence of 30 months’ imprisonment.
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Her appeal against the respondent’s decision came before a Panel of the First-tier Tribunal on 4 April 2014, the Panel consisting of First-tier Tribunal Judge P. J. Clarke and Mr J. O. De Barros, a non-legal member, whereby the appeal was allowed.
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Permission to appeal against that decision having been granted by a judge of the Upper Tribunal, the appeal came before Upper Tribunal Judge Hanson on 28 July 2014. He concluded that the First-tier Tribunal had erred in law and set aside its decision, for the decision to be re-made in the Upper Tribunal. I set out Judge Hanson’s decision as follows:
“ERROR OF LAW FINDING AND DIRECTIONS
1. This is an appeal by the Secretary of State against a determination of a panel of the First-tier Tribunal composed of First-tier Tribunal Judge P J Clarke and Dr J O De Barros (hereinafter referred to as ‘the Panel’) who in a determination promulgated on 18th April 2014 allowed LML’s appeal against an order for her deportation from the United Kingdom.
2. LML was born in 1967 and is a single female citizen of Jamaica. On 13th July 2013 an automatic deportation order was made following a conviction for unlawful wounding for which LML was sentenced to a period of 30 months imprisonment.
3. Having considered the evidence made available to them the Panel set out their findings from paragraph 11 of the determination which can be summarised as follows:
i. That LML and her daughter were credible witnesses about their relationship and the relationship between LML and her daughter B.
ii. That LML is B’s primary carer [11 (i)]. LML’s older daughter C confirmed in a witness statement that she could not care for B.
iii. Documentary evidence does not suggest that B has any sort of relationship with her father [11 (ii)].
iv. A letter from B indicates a close relationship with her mother and that she and her sisters visited their mother fortnightly in prison and that her mother telephoned her on a daily basis [11 (iii)].
v. LML has a genuine and subsisting parental relationship with B, a child under 18 in the UK and a British citizen [14].
vi. It would not be reasonable for B to leave the UK. She was born here, she is a British citizen, her sisters and niece is in the UK. The school report indicates she is doing well. There is no indication she has family in Jamaica although as a result of inconsistencies in the witness statements the panel were not sure about that fact [15].
vii. There is no family member in the UK able to care for B in the UK. She has no contact with her father attendance at school suffered when her sister looked after her although there is little evidence her schoolwork suffered. C is not be able to care for B. C is pregnant and will be moving in with her boyfriend although such a finding of inability is made with an element of doubt. It was not suggested another daughter P was able to care for B [16].
viii. Requirements of 399 (a) (i) and (ii) (a) and (b) of the Immigration Rules are met [17]. In light of this the Secretary of State did not consider B’s rights and the general principles of European law or Article 8 ECHR.
4. The Secretary of State sought permission to appeal asserting that the Panel made a material misdirection in law in relation to their application of paragraph 399 (a). The grounds allege the Panel's findings are ambiguous and in relation to the other daughter P, inadequate. P was not excluded from the role as a potential carer for B solely because the Secretary of State did not advance her as a potential carer.
5. The grounds also asserts that the Panel failed to acknowledge that cases involving criminality differed from merely administrative removal cases and that the best interests of the child, whilst a weighty fact, need to be weighed against the public interest in respect of reasonableness. There was a viable alternative to B leaving the United Kingdom which was to remain with either of her sisters although should her mother wish to remain her primary carer it will be reasonable to expect B to leave the United Kingdom with her mother who could assist her in readjusting to life in Jamaica. It was said in a supplementary decision letter that it will be open to B to return to the UK at an independent age if she so wished.
6. Permission to appeal was granted by Upper Tribunal Judge Dr Kekic on the basis it is arguable that the Panel, in what is a brief determination, did not consider all the factors and that the findings under paragraph 399 are flawed and that where there is serious criminality, as here, the Panel should have appreciated that the presence of the child is not a trump card. Permission was granted on all grounds.
Error of law
7. LML finds herself the subject of a deportation order as a result of her criminality. His Honour Judge Webb in sentencing her on 17 April 2012 noted the guilty plea, the fact LML carried a knife to peel fruit, and that she did not intend to cause serious injury although it was noted that the damage caused to the victim by LML undoubtedly involved greater harm. The injury to the victim's face was a serious one which is permanent physically and probably permanently psychologically affected her. The Judge stated the assault was sustained, that there were number of blows with a knife, it was an offence of great harm involving the use of a weapon. LML deliberately caused more harm than was necessary for the commission of the offence leading to the conclusion it was an offence of higher culpability within Category 1 for malicious wounding. A further aggravating factor was the location of the offence in broad daylight in West Bromwich. The Judge suspected it was a deliberate attack by LML to mark the face of someone she thought was a rival for the attentions of a man. It was an isolated incident with no previous convictions although the Judge noted "people who use knives and then cause lifelong injury physically and psychologically to a victim would lose their liberty, whether or not they are of good character. In my judgement, you could have faced a Section 18 wounding charge. This was a very serious and nasty offence and in all the circumstances it comes at the top of the category range of 1 to 3 years, in my judgment.”
8. The basis of the opposition to deportation order was that deportation would breach LML’s rights under Article 8 ECHR. The Panel correctly identified that there are relevant Immigration Rules that they were required to consider and that as a result of the period of offending paragraph 398 was applicable which states:
398. Where a person claims that their deportation would be contrary to the UK’s obligations under Article 8 of the Human Rights Convention, and
(a) the deportation of the person from the UK is conducive to the public good because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of least 4 years;
(b) the deportation of the person from the UK is conducive to the public good because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months; or
(c) the deportation of the person from the UK is conducive to the public good because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law, the Secretary of State in assessing that claim will consider whether...
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