Upper Tribunal (Immigration and asylum chamber), 2016-03-04, IA/04448/2015

CourtUpper Tribunal (Immigration and Asylum Chamber)
Hearing Date16 February 2016
Date04 March 2016
Published date31 January 2017
Appeal NumberIA/04448/2015
StatusUnreported

Appeal Number: IA/04448/2015




Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: IA/04448/2015


THE IMMIGRATION ACTS


Heard at Newport

Decision & Reasons Promulgated

On 16 February 2016

On 4 March 2016



Before


UPPER TRIBUNAL JUDGE GRUBB


Between


SECRETARY OF STATE FOR THE HOME DEPARTMENT


Appellant

And


TWC

(ANONYMITY DIRECTION MADE)

Respondent


Representation:


For the Appellant: Mr I Richards, Home Office Presenting Officer

For the Respondent: No Representative


REMITTAL AND REASONS

  1. Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) I make an anonymity order. Unless the Upper Tribunal or Court directs otherwise, no report of these proceedings shall directly or indirectly identify the Appellant. This direction applies to both the appellant and to the respondent and a failure to comply with this direction could lead to Contempt of Court proceedings.

Introduction

  1. This is an appeal by the Secretary of State against a decision of the First-tier Tribunal (Judge Knowles) allowing TWC’s appeal against a decision of the Secretary of State taken on 23 January 2015 to deport TWC to Zimbabwe on the basis that his deportation is conducive to the public good under s.3(5)(a) of the Immigration Act 1971.

  2. For convenience, I will refer to the parties as they appeared before the First-tier Tribunal.

Background

  1. The appellant is a citizen of Zimbabwe who was born on 11 March 1976. He arrived in the UK on 5 May 1999 with leave to enter as a visitor valid until 3 November 1999. Thereafter, the appellant’s leave expired. On 14 February 2002, the appellant made a claim for asylum which was refused on 12 November 2003. On 10 May 2002, he made an application for indefinite leave to remain as a spouse but that was also refused on 10 June 2002. Thereafter, the appellant voluntarily left the UK either in 2005 or in April 2006 – the precise date is not clear from the papers.

  2. On 6 April 2006, the appellant applied for entry clearance as a spouse but this was refused on 4 May 2006. His appeal against that decision was allowed on 23 February 2007 and in July 2007 he entered the UK with leave as a spouse valid until 13 July 2009.

  3. On 9 July 2009 the appellant submitted a further application for indefinite leave to remain as a spouse but that application was refused on 16 March 2010. Again he appealed and his appeal was allowed on 29 July 2010. On 15 September 2010 he was granted indefinite leave to remain.

  4. Whilst the appellant has been in the UK he has been convicted of a number of criminal offences between September 2001 and September 2014. These offences include a number of motor vehicle offences resulting in community punishment orders, obtaining a false passport for which he was sentenced to 8 months imprisonment, obtaining services by deception for which he received a community punishment order and shoplifting for which he received a conditional discharge.

  5. On 6 November 2013, he was convicted at the Cardiff Crown Court of two offences of possession with intent to supply Class B drugs. He was sentenced to 8 months imprisonment which was suspended for 2 years.

  6. On 13 October 2014, having been committed for sentence, at the Cardiff Crown Court the appellant was sentenced for two offences of common assault involving domestic violence against his partner and he was sentenced to 2 months imprisonment. In addition, as he was in breach of the suspended sentence order, that sentence was activated and a consecutive term of 6 months imprisonment imposed. The total period of imprisonment was, therefore, 8 months.

  7. Following these offences, on 4 December 2014 the appellant was notified of his liability to be deported on the basis that his deportation was conducive to the public good. On 5 January 2015, submissions were made on behalf of the appellant as to why he should not be deported. In a decision dated 23 January 2015, the Secretary of State rejected the appellant’s claim not to be deported on the basis that it would breach Art 8 of the ECHR. On that same date, the respondent made the decision to deport the appellant which is the decision the subject of this appeal.

The Appellant’s Claim

  1. The appellant’s claim not to be deported relied upon Article 8 of the ECHR. He relied both upon his family life in the UK and also his private life. As regards the former, he relies upon his relationship with his partner whom he met in 1999 and they were married in October 2011. They have two children, a daughter R who was born on 22 January 2011 and a son, F who was born on 19 July 2007. The appellant’s wife also has a son who is 22 years of age. All the appellant’s family are British citizens. As regards his ‘private life’, the appellant relied upon the time he has spent in the UK and the time he has spent outside Zimbabwe.

  2. The Secretary of State rejected the appellant’s claim not to be deported under the Rules, namely para 399(a) and (b) (based upon his relationships with his partner and children) and para 399A (based on his private life). Accepting the relationships were genuine, the Secretary of State concluded that it would not be ‘unduly harsh’ for the appellant’s family to move with him to Zimbabwe or, if they so chose, to remain in the UK without him. Further, the Secretary of State concluded that there were no ‘very significant obstacles’ to his reintegration into Zimbabwe, despite his period of absence, given his age and links with Zimbabwe. Finally, the Secretary of State concluded that there were no ‘very compelling circumstances’ to outweigh the public interest so as to prevent his deportation.

The Judge’s Decision

  1. Judge Knowles considered a substantial body of evidence including oral evidence from the appellant, his wife and two family friends.

  2. The appellant again relied upon his private and family life and Article 8 of the ECHR. There was evidence before the Judge that the appellant’s daughter R was autistic and that she had a long-term history of self-harm and that separation from her father would have a negative effect upon her.

  3. In approaching the appellant’s appeal, the Judge stated at paragraph 48:

It is an appeal on human rights grounds (Article 8) and not an appeal against a decision to make a deportation order under the Immigration Rules.”

  1. Applying that, Judge Knowles made no reference to the relevant and applicable Immigration Rules, namely paras 398-399A. Instead, the Judge considered the appellant’s claim directly under Article 8 applying the 5-stage process in Razgar [2004] UKHL 27. The Judge accepted that the appellant had established private life in the UK and also family life with his wife and children. The Judge accepted that the appellant’s deportation would interfere with that private life and as a consequence Article 8.1 was engaged.

  2. Turning to Article 8.2, the Judge accepted that the respondent’s decision was for a legitimate aim and in accordance with the law. The Judge then turned to consider whether the appellant’s deportation would be proportionate. In doing so, the judge considered the factors set out in s.117B and 117C of the Nationality, Immigration and Asylum Act 2002.

  3. The Judge concluded that the appellant’s claim could not succeed on the basis of his private life. However, having regard to his family life, in particular the impact upon his daughter R, the Judge concluded that the appellant’s deportation would be “unduly harsh” and, as a consequence, a disproportionate interference with his family life.

The Respondent’s Appeal

  1. The respondent appealed to the Upper Tribunal on two grounds which Mr Richards adopted in his submissions.

  2. First, it was submitted that the Judge had erred in law by failing to consider the appellant’s Article 8 claim under the Immigration Rules and through the “lens” of those Rules. Reliance was placed upon the Court of Appeal’s decision in AJ (Angola) v SSHD [2014] EWCA Civ 1636 in particular at [39]-[40].

  3. Secondly, it was submitted that the Judge had been wrong to approach the appellant’s Article 8 claim on the basis that the Presenting Officer had conceded that the appellant’s family could not go with him to Zimbabwe. It was submitted that the Presenting Officer had simply stated that there was “no expectation” that they would do so in the sense that they would not be required to do so. As a consequence, the Judge had failed to consider whether it would be unduly harsh for the appellant’s family to relocate to Zimbabwe.

Discussion

  1. There is no doubt that the appellant’s case fell to be considered under the relevant Immigration Rules, in particular paragraph 398(c) which provides as follows:

398. Where a person claims that their deportation would be contrary to the UK’s...

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