Upper Tribunal (Immigration and asylum chamber), 2015-11-03, [2015] UKUT 653 (IAC) (Terrelonge (para 399(b)))
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge Gill |
| Status | Reported |
| Date | 03 November 2015 |
| Published date | 27 November 2015 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 19 October 2015 |
| Subject Matter | para 399(b) |
| Appeal Number | [2015] UKUT 653 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
Terrelonge (para 399(b)) [2015] UKUT 00653 (IAC)
THE IMMIGRATION ACTS
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Heard at Field House |
Decision Promulgated |
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On 19 October 2015 |
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Before
Upper Tribunal Judge Gill
Between
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Keron George Mcleod Terrelonge (Anonymity Order Not Made)
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Appellant |
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And
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The Secretary of State for the Home Department |
Respondent |
Representation:
For the Appellant: Mr S Jaisri, of Counsel, instructed by Victory@Law Solicitors
For the Respondent: Mr C Avery, Senior Home Office Presenting Officer
(i) The requirements in para 399(b) are conjunctive. Accordingly, the correct approach is to consider para 399(b)(i) before the requirements in para 399(b)(ii) and (iii). If para 399(b)(i) is not satisfied, there is no need to consider the issues of undue hardship in para 399(b)(ii) and (iii). The offender would then have to rely upon showing other factors that show very compelling circumstances over and beyond those described in paras 399 and 399A.
(ii) Para 399(b)(i) will only be satisfied if the relationship relied upon was entered into at a time when: (a) the offender had settled status which he had not obtained by deception or other means that imperils his settled status; and (b) he did not fall within the definitions of “foreign criminal” in s.32 of the UK Borders Act 2007 or s.117D of the Nationality, Immigration and Asylum Act 2002; and (c) he had not been notified of his liability to deportation.
(iii) The automatic deportation provisions in s.32 of the 2007 Act apply to persons convicted in the period between the passing of the Act (30 October 2007) and its implementation (1 August 2008).
DECISION AND REASONS
Introduction
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The appellant, a national of Jamaica, has appealed with permission granted by the Upper Tribunal on 15 May 2015 against the decision of a panel of the First-tier Tribunal (Immigration and Asylum Chamber) (“FtT”) (Judge of the First-tier Tribunal B A Morris and Mrs. R Bray JP) (hereafter the “second panel” or the “panel” to distinguish it from the “first panel”, see [20] below). The decision of the second panel was promulgated on 24 October 2014, following a hearing on 14 October 2014, by which the panel dismissed his appeal under the Immigration Rules (hereafter the “IRs” in plural and “Rule” in the singular) and on human rights grounds (Article 8 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”)) against a decision of the respondent of 21 May 2013 to refuse to revoke a deportation order made on 27 July 2011 on the basis that the respondent deemed his deportation to be conducive to the public good pursuant to s.3(5)(a) of the Immigration Act 1971. Reasons for the refusal are given in a letter that is also dated 21 May 2013 (the “RFRL”).
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Deportation proceedings (the chronology of which is described below) were commenced following the appellant’s conviction on 21 November 2001 at Inner London Crown Court of an offence of causing grievous bodily harm with intent to do grievous bodily harm in respect of which he was sentenced to a 3-year custodial sentence. The appellant appealed against his sentence. On 30 April 2002, the appeal court increased his sentence to 3 years 9 months.
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There is no evidence that the appellant has since committed any criminal offences.
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The appellant has a rare condition of the spinal cord known as HTLV-I associated Myelopathy (HAM). This is a condition associated with long term inflammation of the spinal cord. The long term diagnosis is to become wheelchair dependent. There is a summary of the appellant's condition at [47] of the second panel’s decision, quoted at [30] below.
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Before the second panel, the appellant's Article 8 claim was based on his relationship with a Ms Walker said to have started in 2002 (according to the appellant’s evidence before the second panel) or 2004 (according to her evidence before the second panel). Before the second panel, it was not argued that the appellant’s case fell within para 399(a) or 399A of the IRs (second panel’s decision, at [53]). It was argued that his Article 8 claim fell to be considered under para 399(b).
Immigration history and background facts
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The appellant arrived in the UK on 26 January 1997 as a visitor for six months. He obtained further leave to remain as a student which was subsequently extended to 18 January 1999.
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On 19 March 1999, the appellant married a British citizen, Ms E Daniel. He then applied for leave to remain as a spouse which was granted until 18 January 2001. Upon a further application he was granted indefinite leave to remain (“ILTR”) on 11 October 2001 on the basis of his subsisting marriage.
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On 21 November 2001 the appellant was convicted of the offence described at [2] above. As stated above, the appeal court increased his sentence to three years nine months.
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In the light of his criminal conviction, the appellant was notified on 4 December 2002 of his liability to deportation on conducive grounds. A decision was made to pursue his deportation to Jamaica and a decision notice and reasons for deportation letter were issued on 20 November 2003 and served on him together with an ICD.0343 reporting restriction letter requiring him to report at Becket House within 24 hours of his release on completion of his sentence on 21 November 2003 and every Thursday. The appellant was, in fact, released from prison in January 2003.
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The appellant lodged an appeal dated 5 December 2003 against the reasons given by the respondent in the letter dated 20 November 2003 to deport the appellant. The appeal was heard by Adjudicator F R C Such on 18 June 2004. In a determination promulgated on 8 July 2004, the appeal was dismissed.
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The appellant’s wife did not attend the hearing on 18 June 2004 notwithstanding that an earlier hearing on 18 June 2004 had been adjourned because it was said that her daughter had chickenpox. A direction was issued that a letter from the GP be produced to support the explanation given for her absence from the hearing on 18 June 2004. No such GP's letter was submitted to Adjudicator Such.
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The appellant’s application for permission to appeal against the determination of Adjudicator Such was refused by Mr N H Goldstein, Vice President of the Immigration Appeal Tribunal, on 14 September 2004. An application for Statutory Review was dismissed on 14 October 2004 and the appellant became appeal rights exhausted on the same day.
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The respondent alleged that the appellant failed to comply with the requirements to report at Becket House and he also failed to advise the Home Office of his change of address.
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On 23 May 2006, the appellant made an application for naturalisation as a British Citizen which was refused on 11 October 2006 on the basis of character.
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On 19 October 2010, the appellant made a further application for naturalisation as a British citizen which was refused on 26 November 2010 due to his criminal conviction.
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The appellant was subsequently brought to the attention of Criminal Casework through the representations of his son (Keron Anthony Terrelonge, date of birth: 7 August 1987). Keron Anthony Terrelonge had arrived in the UK on 27 July 1998 and was deported on 1 July 2012.
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A Deportation Order was signed against the appellant on 27 July 2011 and was served on him when he reported at Becket House on 4 August 2011.
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The appellant’s then solicitor, Messrs Chartwell & Sadlers, made representations on 21 October 2011 and 9 November 2011. Such representations were treated as an application to revoke the Deportation Order.
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The respondent then made attempts to obtain information about the appellant's relationship with his wife, daughter and stepson, as detailed at [24]-[27] of the RFRL. Eventually, the appellant's representatives said in a letter dated 20 February 2013 that the appellant was no longer in a relationship with his wife and had not been with her since about 2004. By letter dated 11 April 2013, the respondent then requested information about his relationship with his daughter and stepson.
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The skeleton argument before the second panel said that the appellant and his wife were divorced in 2008 (second panel’s decision at [48]). The...
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