Upper Tribunal (Immigration and asylum chamber), 2014-03-13, DA/00844/2013
| Jurisdiction | UK Non-devolved |
| Date | 13 March 2014 |
| Published date | 07 April 2014 |
| Hearing Date | 25 February 2014 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | DA/00844/2013 |
Appeal Number: DA/00844/2013
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00844/2013
THE IMMIGRATION ACTS
|
Heard at Field House |
Determination Promulgated |
|
On 24 February 2014 |
On 13 March 2014 |
|
Prepared 25 February 2014 |
|
Before
UPPER TRIBUNAL JUDGE MCGEACHY
Between
jai kumar sunwar
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr C Howells, of Counsel instructed by Messrs N.C. Brothers
& Co Solicitors
For the Respondent: Mr S Walker, Senior Home Office Presenting Officer
DETERMINATION AND REASONS
1. The appellant appealed against a decision of the Secretary of State made on 16 April 2013 to deport him under Section 32(5) of the UK Borders Act 2007. His appeal before the First-tier Tribunal was allowed but on appeal I found that there was a material error of law in the determination of the First-tier Tribunal and set that determination aside. My decision was as follows:-
“1. The Secretary of State appeals, with permission, against a decision of the First-tier Tribunal (Judge of the First-tier Tribunal Ian Scott and Mr B D Yeats (Non-Legal Member)) who in a determination promulgated on 25 November 2013 allowed the appellant’s appeal against a decision of the Secretary of State to make a deportation order against him.
2. Although this is the appeal of the Secretary of State I will for ease of reference refer to her as the respondent as she was the respondent in the First-tier. Similarly I will refer to Mr Jai Kumar Sunwar as the appellant as he was the appellant before the First-tier Tribunal.
3. The appellant is a citizen of Nepal born on 17 April 1987. His father entered Britain in May 2006. In August the appellant was granted entry clearance as dependent and, on arrival in Britain in December 2006, was granted indefinite leave to remain.
4. On 7 August 2012 he was convicted at Canterbury Crown Court for possession of heroin with intent to supply and was sentenced to twenty months’ imprisonment. On 3 September 2012 he was notified of his liability to automatic deportation, the deportation order being made against him on 16 April 2013 under Section 32(5) of the UK Borders Act 2007.
5. The Tribunal heard evidence from the appellant and his father and having briefly stated in paragraph 21 that it was accepted that the appellant could not meet the terms of the Immigration Rules, considered the appellant’s claim that his rights under Article 8 of the ECHR would be infringed by his removal solely in terms of the Convention. Having noted the terms of the determination Ghising (family life – adults – Gurkha policy) [2012] UKUT 00160 (IAC) and the judgment in the Court of Appeal in Gurung & Others [2013] EWCA Civ 8 the Tribunal set out the structured approach to the issue of an appellant’s Article 8 rights as set out in the judgment of the House of Lords in Razgar [2004] UKHL 27.
6. The Tribunal noted the public interest in the deportation of criminals before setting out the various issues raised in the decision of the European Court of Human Rights in Maslov [2008] ECHR 546.
7. In paragraphs 33 onwards they set out their reasons for finding that the removal of the appellant would be disproportionate. They stated that it was relevant that the appellant had been sentenced as a low-level street dealer and that the offence had been committed against the background of the appellant’s own heroin addiction. They stated that they accepted that the appellant was no longer addicted to heroin. They note that the appellant had been in Britain for nearly seven years and then somewhat surprisingly referred to an Upper Tribunal determination in Dewan, number DA/00039/2013, which was heard in August 2013. I note that there was nothing to indicate that the barrister who represented the appellant was entitled to ask them to take that determination into account – the requirements of the Practice Directions regarding the submission of unreported determinations were not complied with. I note from the copy of that determination on the file that it is, in fact, merely a decision in an error of law hearing where the decision of the First-tier Tribunal was set aside and the appeal remitted to the First-tier for a hearing de novo. The ratio of the decision however appeared to be that there was a “historic injustice” argument relevant in the appeal. It appears the Tribunal decided that they would take this into consideration and in their conclusions in paragraphs 36 through 39 of the determination they stated:-
‘36. We take these factors into account in this case, giving due weight to the relevant legitimate aim of preventing disorder or crime on the one hand and the ‘historic injustice’ on the other, without which the appellant might be a British citizen by now, his father having been discharged from the Army in 1991, and thus be immune from deportation.
37. In regard to the remaining Maslov criteria, we note that the appellant’s offence occurred comparatively recently, but we take into account, for what it is worth, the fact that his conduct since then has been good.
38. We find that the appellant has strong social, cultural and family ties with the United Kingdom, having lived here for nearly seven years since the age of 19 with close family members. By contrast, he no longer has any real connection with Nepal. He has no home and no family there and has not lived in that country since 2006. Indeed, since coming to the United Kingdom he has only been back on one occasion for a holiday.
39. Balancing all of these factors, we have come to the view that the public interest in deportation in this case is outweighed by the various countervailing factors, in particular the appellant’s length of residence with his family in this country taken together with the ‘historic injustice’. Accordingly, we find that the appellant’s deportation would involve a disproportionate interference with his Article 8 rights and those of his immediate family’.
8. They therefore allowed the appeal. The Secretary of State appealed, arguing that the Tribunal had misdirected themselves in law in that they had not taken into account the clear guidance in the judgment in MF (Nigeria) [2008] EWCA Civ 1192 and not accepted that it was only in exceptional circumstances that a deportation case should succeed under Article 8. The grounds referred further to the judgment of the Court of Appeal in Gurung [2012] EWCA Civ 62 which had referred to the appellant in that case as being a “physically fit and intellectually sound young man who had lived in Nepal in the past” and decided that deportation was a proportionate response to his crime. It was pointed out that the judgment in Gurung emphasised the weight to be placed on the decision of the Secretary of State to invoke the provisions of Section 32 of the Borders Act 2007. It was claimed that the Tribunal had not adequately balanced the public interest in the deportation of a convicted criminal against the appellant’s ties in the United Kingdom.
9. Mr Bramble relied on those grounds of appeal. While he accepted that the hearing of the appeal had taken place before the judgment in MF (Nigeria) [2013] EWCA Civ 1192 had been issued on 8 October 2013 he stated that the determination had not been promulgated until after the judgment in MF (Nigeria) had been issued and therefore that the Tribunal should have taken that into account. He emphasised that the judgment in MF set out the necessity of there being compelling and exceptional factors before an appellant could succeed in arguing that his rights under Article 8 would be infringed by the decision. He stated that the Tribunal had not identified such factors. He referred to the fact that the appellant’s crime was committed when he was an adult – this was not an appellant who had come to Britain as a child. He stated that the appellant’s circumstances were similar to that of the appellant in Gurung in that he was physically fit and intellectually sound and there was nothing to indicate that he required the support of his father or indeed that his father required his support. The Tribunal had referred to “historic injustice” done to Gurkhas but there was nothing to indicate that that was relevant to the appellant’s case. He stated there was nothing to indicate that the Tribunal had considered the public interest in the deportation of a man who had committed a serious crime.
10. In reply Ms Stickler referred to her skeleton argument in which she had set out the factors which the Tribunal had taken into account in paragraph 25 of the determination. They included the fact that the appellant had always lived with his family in their family home, that he was not living an independent life, had a close relationship with his family, and his extended family also lived in the UK. They had found that the appellant’s...
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