Upper Tribunal (Immigration and asylum chamber), 2017-12-07, HU/12557/2016
| Jurisdiction | UK Non-devolved |
| Date | 07 December 2017 |
| Published date | 21 December 2017 |
| Hearing Date | 07 November 2017 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | HU/12557/2016 |
Appeal Number: HU/12257/2016
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: hu/12257/2016
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 7th November 2017 |
On 7th December 2017 |
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Before
UPPER TRIBUNAL JUDGE RIMINGTON
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
MR E S R
(aNONYMITY DIRECTION not made)
Respondent
Representation:
For the Appellant: Ms P Solanki, Counsel instructed by Lighthouse Solicitors
For the Respondent: Mr E Tufan, Home Office Presenting Officer
DECISION AND REASONS
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Although the appellant is the Secretary of State I refer to the parties as they were described before the First-tier Tribunal.
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The appellant is a citizen or Morocco born on 25th December 1963 and he appealed against the decision of the respondent dated 29th April 2016 to make a deportation order pursuant to Section 32(5) of the UK Borders Act 2007. The reasons are set out in a letter dated 5th May 2016.
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The appellant entered the United Kingdom in October 1974, aged 10, on his mother’s passport. He remained in the United Kingdom, was educated here, worked here and had a family here.
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On 7 August 2009 the appellant was convicted at Kingston Crown Court for possession of a class A drug, namely crack cocaine and supplying a controlled drug, class B cannabis resin and was sentenced to two years’ imprisonment. Following the conviction he was served with a notice of liability to deportation and in April 2010 the appellant was detained and a deportation order signed and served on him. That deportation order was successfully appealed in September 2010 before First-tier Tribunal Judge Lobo and on 6 September 2011 the appellant was granted three years’ discretionary leave to remain following his successful appeal. In September 2014 he submitted an application for leave to remain giving rise to the decision under appeal. In effect, the Secretary of State saw fit to make a further deportation order against the appellant on the same index offence of 2009 that had been successfully appealed previously. She was entitled to do so under the amended Immigration Rules.
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Between 1980 and 1987 the appellant had received five convictions for some fifteen offences including offences against property, theft and kindred offences. The sentencing remarks of the judge at the Crown Court in 2009 included the following remarks:
“Finally R... three Counts. The first two of supplying Class A and being concerned in the supply of Class A, and the third Count supplying cannabis. Very different. Again, the motivation for this offending was your own addiction...
...the offending in your case was motivated by your own addiction, just like the others. And your last conviction I note was 27 years ago. That’s a long time ago. You’re now aged I think about 45, and you actually so I’m told had a longstanding alcohol problem and together with that, much more recently but nonetheless had in glove with it, drug abuse or drug using. The quantities were very small in your case and I think that the appropriate sentence in your case is one of two years. You’ll serve two years concurrently on Counts 1 and 2 and 14 days on Count 4....”.
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The appellant’s appeal against the second deportation order came before First-tier Tribunal Judge Carroll in February 2017 who allowed the appeal. The Secretary of State was granted permission to appeal and I found an error of law and set the decision aside with preserved findings. Judge Carroll found the appellant could not fulfil the exceptions under paragraph 399A as there were no significant obstacles to his integration in Morocco. The judge, however, proceeded to allow the appeal on the basis that appellant’s length of residence alone was a compelling reason. That was an error of law and there were inadequate findings in relation to the public interest. The weight ascribed by the judge to the public interest was not demonstrated when reading the decision as a whole. The court in Hesham Ali v SSHD [2016] UKSC 60 referred to “a very strong claim indeed” in order to be successful in relation to deportation.
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The matter was retained in the Upper Tribunal.
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At the resumed hearing before me, Mr Tufan cross-examined the appellant at some length.
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The appellant confirmed that he was last in Morocco in May 2014 and although there was a house there all his family and children were in the United Kingdom. He had a daughter who had severe mental health problems whom he supported and in the last two years he had rediscovered and developed a relationship with her. He supported her during her mental health illness. He confirmed that he did speak Arabic but mostly English. He also confirmed that when he came out of prison he worked in a bakery but was now nearly 55 years old with poor health. He would find it very difficult to work and support himself in Morocco. His parents receive state pensions and his various siblings had their own families to support. They could not give him financial support.
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His partner, L H gave evidence and confirmed that she had been a friend of the appellant’s for 30 years but they had become romantically involved since 2015. Although she was prepared to support him in his removal to Morocco she had her children and family in the United Kingdom one of whom was still a student.
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Z D, the appellant’s eldest daughter also attended to give evidence and confirmed that she had regular contact with her father every other day and would stay with him at weekends. He supported her when she went into hospital and she suffered from cyclical vomiting syndrome. Her grandfather had hitherto supported her but now he was now very old and was unable to support her. She had experienced very severe ill-health and depression, with which her newly renewed contact with her father assisted her and he also helped her with budgeting her finances with which she had difficulty.
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The appellant’s daughter C, who was 28 years, old also gave oral testimony and adopted her statement.
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In submissions Mr Tufan relied on the case of Bossade (ss.117A-D-interrelationship with Rules) [2015] UKUT 00415 (IAC) and advanced that the issue in this case was whether the appellant succeeded under paragraphs 399A:
“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.”
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As Mr Tufan submitted paragraph 399A(c) was mirrored by Section 117C(4)(c), that is, there should be consideration of whether there would be very significant obstacles to the appellant’s integration into the country to which it is proposed he was deported. Mr Tufan submitted that the evidence was that the appellant spoke Arabic and his parents had a home in Morocco. He had been economically active in the past. In the case of Bossade an appellant who was from the DRC and who had been here since the age of 2 or 3 years had been returned to his country of origin. This authority outlined the demanding test regarding ‘very significant obstacles’.
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I was also referred to the case of AS [2017] EWCA Civ 1204 which commented on the case of SSHD v Kamara [2016] EWCA Civ 813 [37] confirming that ‘it is not appropriate to treat the statutory language as subject to some gloss and it will usually be sufficient for a court or tribunal to direct itself in the terms that Parliament has chosen to use’. The test for integration was a broad evaluative test but the test of very significant obstacles erected a self evidently elevated threshold.
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In the alternative I needed to consider whether there were very compelling circumstances under paragraph 398C. None of the circumstances described amounted to very compelling circumstances. The appellant had been in the UK since the age of 11. It was the case that there had been a previously allowed appeal but it was open to the Secretary of State under the Immigration Rules to make a new deportation order although the case was unusual.
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Ms Solanki relied on her recent skeleton argument. She submitted there were significant obstacles to his return. He had only visited Morocco six times since he had left and he was integrated in line with the test set out in the case of Kamara. That underlined that integration was a broad concept and not confined to the mere ability to find a job or to sustain life while living in the other country. The authority of AS did not say that the integration test in Kamara was incorrect.
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The appellant had been lawfully resident in the UK for most of his life and this was where his formative childhood years between the ages of 11 to 18 had been...
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