Upper Tribunal (Immigration and asylum chamber), 2017-10-23, HU/22254/2016
| Jurisdiction | UK Non-devolved |
| Date | 23 October 2017 |
| Published date | 14 November 2017 |
| Hearing Date | 10 October 2017 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | HU/22254/2016 |
Appeal Number: HU/22254/2016
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/22254/2016
THE IMMIGRATION ACTS
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Heard at Field House |
Determination Promulgated |
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On 10 October 2017 |
On 23 October 2017 |
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Before
The Hon. MRS JUSTICE LANG
UPPER TRIBUNAL JUDGE CRAIG
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
JUNIOR FOLKES
Respondent
Representation:
For the Appellant: Mr P. Duffy, Home Office Presenting Officer.
For the Respondent: Ms K. Joshi, Legal Representative, instructed by A. Bajwa & Co. Solicitors.
DETERMINATION AND REASONS
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The Appellant (referred to as “the SSHD”) appeals against the decision of the First-tier Tribunal (FTT), promulgated on 26 June 2017, in which FTT Judge Frankish allowed the appeal by the Respondent (Mr Folkes) under section 82(1) of the Nationality, Immigration and Asylum Act 2002 (“NIAA 2002”) against the SSHD’s decision to deport him and to refuse his human rights claim, dated 9 September 2016. FTT Judge Robertson granted the SSHD permission to appeal on 19 July 2017.
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Mr Folkes is a Jamaican national who has been living in the UK since 2001. He has an adult daughter in Jamaica and he has fathered four children in the UK from three different relationships. On 6 July 2007, Mr Folkes was convicted of rape, and sentenced to 6 years imprisonment. This sentence triggered the automatic deportation provisions in the UK Borders Act 2007 (“UKBA 2007”).
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The main issues in the appeal were:
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the approach which the Tribunal should adopt to the SSHD’s fresh decision to deport Mr Folkes given that, at an earlier appeal in 2010, the Upper Tribunal had held that the exception under section 33(2)(a) UKBA 2007 applied and it would be in breach of article 8 of the European Convention of Human Rights (“ECHR”) to deport him; and
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whether the FTT failed to apply correctly the test of “very compelling circumstances” which outweighed the public interest in deportation, as set out in paragraph 398(a) of the Immigration Rules and section 117C(6) NIAA 2002, when assessing Mr Folkes’ changed family circumstances.
Facts
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Mr Folkes, whose date of birth is 12 November 1975, is now aged 41. He was born and brought up in Jamaica, by his mother, who was a single parent. They were poor, and so he had to work part-time from a young age, and he had a limited education. He left home at age 16, and later worked as a miner. At the date of his application, his mother was still alive and living in Jamaica. He has a brother there too. He also fathered a daughter in Jamaica, and though he placed no weight on that relationship, the FTT found that “he clearly has a degree of relationship with his daughter in Jamaica as he knew that she is 24 and self-sufficient”.
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On 9 December 2001, he entered the UK as a visitor on a 6 month visa, when he was aged 26. He applied for leave to remain as a student on 20 May 2002, but the application was rejected on 13 June 2002, and he remained in the UK without leave.
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Between about January 2002 and November 2002, he was in a relationship with [TB]. Their son, [TF], was born on [ ] 2003, and is now aged 14.
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In July 2002, he met [LW], a British citizen. They became engaged in April 2003, and they married on 15 November 2003. [LW] had a daughter, [D], from a previous relationship who was born in September 1993, who became Mr Folkes’ step-daughter. She is now aged 24.
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On 11 March 2004, he applied for leave to remain as the spouse of a settled person. The application was refused, but on 16 November 2005 he was granted three years discretionary leave to remain, until 16 November 2008.
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On [ ] 2005, [LW] gave birth to their son, [RF], who is now aged 12. He is a British citizen.
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In August 2006, Mr Folkes had an affair with a woman which lasted for 4 to 5 weeks.
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On 27 October 2006 he was arrested, after raping a woman whom he was visiting at her home. On 6 July 2007, he was convicted of rape at Harrow Crown Court and sentenced to 6 years imprisonment. His custodial term ended on 24 May 2010, but he was held in immigration detention until 10 October 2010.
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On 10 May 2010, the SSHD notified him that automatic deportation would take effect, as the statutory exceptions did not apply to his case. A deportation order was served upon him.
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On 11 May 2010, he appealed to the FTT. His appeal was dismissed on 10 June 2010, on the basis that the interference with family life caused by deportation would not be disproportionate to the legitimate aim of preventing disorder and crime.
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On 2 July 2010, he was granted permission to appeal to the Upper Tribunal. In a decision promulgated on 24 September 2010, the Upper Tribunal allowed his appeal, holding that it would be disproportionate to deport him on the basis of the article 8 rights of his family, namely, his wife [LW], his stepdaughter [D], his son [R], and his son [T].
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After his successful appeal, he was released from immigration detention, and went to live in a hostel. He did not return to live with his wife [LW]. He left her after discovering that she had been in a relationship with another man whilst he was in prison. He has had intermittent contact with her and the children since then. At one stage he maintained fortnightly contact with the children but by the date of the FTT hearing, he had not seen the children for 3½ months, because of a breakdown in his relationship with [LW], and he thought he would need to apply for a court order in order to see them. By the date of the appeal before us, some 4 months later, the position had not changed. He had not had contact with the children for many months and believed he would not be able to resume contact without a court order. At the date of the hearing before us, he had not applied for a court order.
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In about March 2011, Mr Folkes began a relationship with [DF], whom he knew from Jamaica. She is a Jamaican national with indefinite leave to remain in the UK. On [ ] 2012, [DF] gave birth to their son, [L], who is now aged 5. He is a British citizen. [DF] has two children, aged 13 and 9, whose father sees them “when he feels like it” according to her evidence to the FTT. At the hearing before us, at which [DF] was present, it was confirmed that the two older children had no regular contact with their father.
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On [ ] 2012, his wife [LW] gave birth to their daughter [R], who is now aged 4. She is a British citizen. Despite the birth of their child, Mr Folkes insisted at the FTT hearing, and at the hearing before us, that his marriage had broken down in 2010.
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Following the decision of the Upper Tribunal, the SSHD granted Mr Folkes discretionary leave to remain but only for periods of 6 months at a time. He was granted leave on 22 October 2010; 15 July 2011 and 25 November 2013. On 9 May 2014, Mr Folkes submitted an application for a further period of leave, without disclosing the changes in his family circumstances.
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On 15 June 2015, he was served with a notice of intention to deport, based upon the conviction in July 2007. His solicitors submitted representations on 10 July 2015 setting out reasons why he should not be deported, relying upon the successful appeal to the Upper Tribunal in September 2010.
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On 9 September 2016, the SSHD sent a decision letter refusing his human rights claim, on the grounds that the public interest in deporting a foreign criminal outweighed his right to private and family life, and it would not be unduly harsh for his wife [LW] and their children [R] and [R] to relocate to Jamaica with him, if they chose to do so. Mr Folkes would be able to maintain contact with [T] via Skype, email etc., and [T] could visit him. As to his private life, the SSHD noted that he was a self-employed builder who would be able to utilise his skills to obtain work in Jamaica, and that he would be able to maintain contact with friends in the UK via modern means of communication. The application for a further period of leave to remain, submitted on 9 May 2014, was refused in this letter.
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The SSHD’s notice of...
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