Upper Tribunal (Immigration and asylum chamber), 2018-12-21, HU/05350/2017
| Jurisdiction | UK Non-devolved |
| Date | 21 December 2018 |
| Published date | 23 January 2019 |
| Hearing Date | 18 October 2018 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | HU/05350/2017 |
Appeal Number: HU/05350/2017
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/05350/2017
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 18th October 2018 |
On 21st December 2018 |
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Before
UPPER TRIBUNAL JUDGE JACKSON
Between
Olalekaan olatunde alli balogun
(ANONYMITY DIRECTION not made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr T Wilding, Senior Home Office Presenting Officer
For the Respondent: Miss D Revill of Counsel, instructed by Rock Solicitors
DECISION AND REASONS
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The Secretary of State appeals against the decision of First-tier Tribunal Judge Colvin promulgated on 6 February 2018, in which Mr Balogun’s appeal against the decision to refuse to revoke his Deportation Order dated 18 March 2017 was allowed. For ease I continue to refer to the parties as they were before the First-tier Tribunal, with Mr Balogun as the Appellant and the Secretary of State as the Respondent.
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I found an error of law in Judge Colvin’s decision promulgated on 6 February 2018 following the first hearing of this appeal on 15 May 2018. The history to this appeal is set out in the error of law decision contained in the annex and will not be repeated here save where reference to the background is needed. This decision is the remaking of the appeal.
The appeal
Explanation for refusal
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The Respondent refused the human rights application/application to revoke the Deportation Order on 13 March 2017 for the following reasons. The Appellant’s circumstances were considered by reference to paragraph 399D of the Immigration Rules to the effect that his claim under Article 8 could only succeed if there were very exceptional circumstances over and above those described in paragraph 399 and 399A. The Respondent considered that there was a significant public interest in deporting the Appellant due to his criminal history of submitting false documents in support of an application for leave to remain in the United Kingdom for which he was successfully prosecuted and sentenced to 18 months in prison; that the Appellant is the subject of a Deportation Order and has continued to use deception as a means of remaining in United Kingdom by not declaring his criminal convictions or alias names on further applications.
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The Respondent considered the best interests of the Appellant’s children pursuant to section 55 of the Borders, Citizenship and Immigration Act 2009, but it was considered that they could remain residing in the United Kingdom with their mother or the option of relocating with the Appellant would be open to them and neither would be unduly harsh. There were no exceptional features of the Appellant’s family or private life to constitute a very compelling circumstance to outweigh the public interest in deportation.
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Overall it was considered that the Appellant’s deportation would not be a disproportionate interference with his right to respect for private and family life under Article 8 of the European Convention on Human Rights and the application to revoke the Deportation Order was refused under paragraph 390 and 390A of the Immigration Rules. It was however accepted that the Appellant’s further submissions amounted to a fresh claim under paragraph 353 of the Immigration Rules and there was therefore a right of appeal against the refusal to revoke the Deportation Order on human rights grounds.
The Appellant’s evidence
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In the course of this appeal, the Appellant made written statements dated 24 August 2016 and 21 August 2018. In these statements he sets out the following in relation to his history and current circumstances.
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In the years 2000 - 2006 the Appellant said he used his names in the short version, ‘Tunde Balogun’, short for ‘Olatunde Alli Balogun’. The Appellant was detained on 6 December 2007 at Belfast airport giving his un-truncated names and fingerprints. On 6 June 2008 he was detained at Dublin airport, during which his fingerprints were scanned showing both of his identities. These were both referred to in correspondence between the authorities in the Republic of Ireland and those in the United Kingdom in relation to a transfer between the two territories.
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Although the Appellant states that he recognises his mistake concerning his criminal offence, he also describes his conviction in 2006 as being due to reliance on the documents provided to him by the accountant he had employed, which he then in turn submitted to the Home Office in good faith with his application for leave to remain as the spouse of an EU citizen in 2000. The Appellant did not live with his spouse and the couple subsequently divorced.
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In 2009, the Appellant states that his partner informed him that the Respondent had requested the names of her dependents further to her application for leave to remain made in 1999. All the documents and information requested were submitted and the Appellant and his family were granted indefinite leave to remain in 2010. The Appellant and his partner had assumed that it was not necessary to write details of the Appellant’s other identity when submitting details of her dependents because the Respondent had full knowledge of both identities from previous fingerprints.
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The Appellant thought that because of the grant of Indefinite Leave to Remain, the Respondent had no intention to deport him and he had not been served with the Deportation Order. The Appellant further thought that the Respondent had pardoned his criminal convictions and cancelled deportation proceedings with the grant of Indefinite Leave to Remain. For these reasons, no mention was made of the Appellant’s criminal convictions in his 2011 application for the transfer of the no time-limit stamp to his new passport. The Appellant’s belief as to this set of circumstances was reinforced in 2012 and 2014 when he travelled to Nigeria and was permitted to re-enter on both occasions. The Appellant states that he was detained on both occasions during which he was interviewed and confirmed his conviction in 2006 but was permitted to enter. Similarly, there was no difficulty when the Appellant attended a police station in June 2011 for his fingerprints to be taken for a Criminal Record Bureau certificate which was subsequently issued containing both of his identities and criminal convictions.
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After travelling to Ireland, the Appellant returned to the United Kingdom sometime in February 2010 with his partner. He stated that he wasn’t aware of the Deportation Order against him at that time and if he was, he would have remained in Ireland rather than breach UK immigration law.
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The Appellant has three siblings in the United Kingdom who are either British Citizens or are settled here. He says he has been in a relationship with his partner, since 1999 and they have three children together born in 2002, 2003 and 2009. The Appellant and his partner have always lived together other than times when she travelled to Ireland for short stays. The Appellant states that his children have only known the UK as their home country and were only born in the Republic of Ireland because he and his partner did not want their lack of leave to remain in the United Kingdom to effect them, so the Appellant’s partner travelled to Ireland to give birth pursuant to advice as the children would have had no leave to remain in the United Kingdom.
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The Appellant provides day-to-day care for his children when his partner is at university and/or work and he also provides care for his brothers’ two children after his wife passed away. The Appellant is closely involved with his children’s lives including being the primary contact for their school.
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The Appellant attended the oral hearing, adopted his written statements and gave oral evidence in English. He stated that his true and correct date of birth is 4 December 1968.
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In cross-examination the Appellant stated that he wasn’t aware that he had lost his appeal against deportation in the First-tier Tribunal in 2007, stating that he went to court but went to Ireland before the decision was received. When asked if he had chased the decision, he only stated that he relied on his lawyer. He was asked repeatedly when he was aware he had lost his appeal to which he gave no clear answer, claiming not to understand the questions or referring only to the intention to deport or not being able to remember.
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In relation to the application to fix a no time-limit stamp to the Appellant’s passport, the Appellant stated that the form was completed by his partner, although did contain his signature on the final page. He accepted that ‘no’ to the question about criminal convictions was incorrect and stated that this was a mistake. It was a mistake because he thought it was over and he had learned his lesson.
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As to his travel to and from Ireland, the Appellant stated that he went there to meet his partner and gave contradictory answers as to whether she was living in Ireland, or the United Kingdom, or both. The Appellant stated that he did not go to Ireland to escape the Respondent as although it...
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