Upper Tribunal (Immigration and asylum chamber), 2016-08-31, DA/00983/2014
| Jurisdiction | UK Non-devolved |
| Date | 31 August 2016 |
| Published date | 08 March 2018 |
| Hearing Date | 20 May 2016 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | DA/00983/2014 |
Appeal Number: DA009832014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00983/2014
THE IMMIGRATION ACTS
|
Heard at Manchester |
Decision Promulgated |
|
on 20 May 2016 |
on 31 August 2016 |
Before
UPPER TRIBUNAL JUDGE HANSON
Between
MOHAMMAD JADER KARIM
(Anonymity direction not made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Schwenk instructed by Fadigia & Co Solicitors.
For the Respondent: Mr A McVeety Senior Home Office Presenting Officer.
DECISION AND REASONS
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Following a hearing at Manchester on the 5 February 2016 it was found a First-tier judge had made an error of law material to the decision to allow the appeal and that determination was set aside. A copy of the reasons for this finding is annexed to this decision at Annex A below.
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The immigration decision under challenge is a decision dated 1 April 2014, made pursuant to section 32(5) UK Borders Act 2007 to deport the appellant.
Background
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The appellant is a national of Iraq born on the 13 January 1990 who arrived in the United Kingdom in October 2002 together with his father, brother, step mother and step sister. His father claimed asylum naming the appellant as his dependant. The applications were refused on 10 December 2002 and an appeal against that decision failed. The appellant’s father became appeal rights exhausted on the 13 November 2003.
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On 27 February 2008 at Leicester Crown Court the appellant was convicted of possessing a Class A controlled drug with intent to supply, heroin and crack cocaine. Between 5 and 11 August 2008 at Leicester Crown Court the appellant was convicted of possessing a firearm without a certificate and on 18 September 2008 sentenced to 6 years detention in a young offender’s institution.
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The appellant’s father, step-mother and step siblings were granted ILR on 10 June 2009 although the appellant was not granted such leave in line due to his conviction.
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On 12 October 2009 a signed deportation order was made and served providing the appellant with an out of country right of appeal. The decision was withdrawn on the 9 May 2011 after the respondent agreed to reconsider the decision.
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On 16 June 2011 a fresh human rights claim was made and refused and on 26 September 2011 the signed deportation order was sent for service. The appellant lodged an appeal against the deportation order on the 10 October 2011 which was allowed to the extent the decision was remitted for the Home Office to consider paragraph 395C of the Immigration Rules. A further liability for deportation notice was sent for service on the 18 May 2012. The appellant completed the document indicating he relied upon asylum and human rights grounds as a result of which he was interviewed on the 30 January 2014.
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On 1 May 2014 the respondent issued a comprehensive refusal letter which served as the decision to deport pursuant to section 32(5) UK Borders Act 2007. It is against this decision that the appellant appealed.
The law
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Mr Schwenk submits that the applicable rules are those in force at the date of decision. Reliance is placed upon paragraph 39 of the Judgement of YM (Uganda) [2014] EWCA Civ 1292 where is was found:
39. So far as the 2014 Rules are concerned, it is clear from the provisions of Rule A362 itself, as well as the statement under "implementation" in the Statement of Changes and paragraphs 3.4 and 4.7 of the Explanatory Memorandum, that the 2014 Rules are to be applied to all decisions concerning Article 8 claims that are made after 28 July 2014. As Lord Hoffmann said in the Odelola case at [7], the Immigration Rules are a statement by the SSHD of how she will exercise powers of control over immigration. Thus, in the absence of any statement to the contrary, the most natural reading of the Rules is that they apply to decisions taken by the SSHD until such time as she promulgates new rules, after which she will decide according to the new rules. The same applies to decisions by tribunals and the courts: that is why in MF (Nigeria) v SSHD[15] (hereafter "MF(Nigeria)"), the Court of Appeal held that both the UT and it were obliged to apply the 2012 Rules to MF, despite the fact that the SSHD had taken her original decision in 2010 under the pre-existing rules.
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The wording of A362 is as follows:
A362. Where Article 8 is raised in the context of deportation under Part 13 of these Rules, the claim under Article 8 will only succeed where the requirements of these rules as at 28 July 2014 are met, regardless of when the notice of intention to deport or the deportation order, as appropriate, was served.
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The Statement of Changes HC 532 confirms that the changes set out in paragraphs 14 to 30 of that statement take effect on 28 July 2014 and apply to all ECHR Article 8 claims from foreign criminals which are decided on or after that date.
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In YM (Uganda) it was held that the relevant time for determining whether the claimant could meet the test in paragraph 339(b) of at least 15 years continuous residence, minus periods of imprisonment, was prior to the respondent's decision to deport the claimant and not at the date of the hearing. The question of whether the Claimant satisfied the requirements in paragraph 399A(b) of the 2012 rules, depended on at what date he was required to be under 25. A fair and practical construction was that the person had to be 25 at the time of the Secretary of State’s original decision. That would fit in with the other provisions in paragraphs 399 and 399A, which required periods of residence in the UK of 15 or 20 years prior to the relevant ‘immigration decision’. (Note: the provisions have been deleted by the 28 July 2014 changes to the Immigration Rules (paras.43, 45 and 49)).
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The Immigration Rules are a complete code for deportation decisions. The Rules have been amended over time and now reflect the statutory provisions contained in section 117 of the 2002 Act which have to be considered in any case in which Article 8 is raised in opposing a deportation decision.
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The appellant was sentenced to two three years periods of imprisonment for the two offences. In YM (Uganda) it was held that paragraph 398 of the Immigration Rules does not require or authorise the aggregation of prison terms to meet the 12 month or 4 year thresholds (para.44), and so the relevant period for considering the applicable rules is that of three years. Hence paragraph 398(b) is applicable. The calculation of the applicable sentence on this basis is also in accordance with section 117D(4)(b) of the 2002 Act.
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Paragraphs 399 and 399A also need to be considered which provide:
399. This paragraph applies where paragraph 398 (b) or (c) applies if –
(a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and
(i) the child is a British Citizen; or
(ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case
(a) it would be unduly harsh for the child to live in the country to which the person is to be deported; and
(b) it would be unduly harsh for the child to remain in the UK without the person who is to be deported; or
(b) the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen or settled in the UK, and
(i) the relationship was formed at a time when the person (deportee) was in the UK lawfully and their immigration status was not precarious; and
(ii) it would be unduly harsh for that partner to live in the country to which the person is to be deported, because of compelling circumstances over and above those described in paragraph EX.2. of Appendix FM; and
iii) it would be unduly harsh for that partner to remain in the UK without the person who is to be deported.
399A. This paragraph applies where paragraph 398(b) or (c) applies if –
(a) the person has been lawfully resident in the UK for most of his life; and
(b) he is socially and culturally integrated in the UK; and
(c) there would be very significant obstacles to his integration into the country to which it is proposed he is deported.
Discussion
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In relation to the order of events I shall consider the protection element of the claim first followed by the human rights...
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