Upper Tribunal (Immigration and asylum chamber), 2018-10-22, HU/05492/2017
| Jurisdiction | UK Non-devolved |
| Date | 22 October 2018 |
| Published date | 12 November 2018 |
| Hearing Date | 18 September 2018 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | HU/05492/2017 |
Appeal Number: HU/05492/2017
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/05492/2017
THE IMMIGRATION ACTS
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Heard at Newport |
Decision & Reasons Promulgated |
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On 18th September 2018 |
On 22 October 2018 |
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Before
UPPER TRIBUNAL JUDGE GRUBB
Between
THE Secretary of State FOR THE Home Department
Appellant
and
JRR
(ANONYMITY DIRECTION MADE)
Respondent
Representation:
For the Appellant: Mr C Howells, Senior Home Office Presenting Officer
For the Respondent: Mr A Joseph instructed by Elite Solicitors Limited
DECISION AND REASONS
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Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) I make an anonymity order prohibiting the disclosure or publication of any matter likely to lead to members of the public identifying the respondent (JRR), his partner or any of his children. A failure to comply with this direction could lead to Contempt of Court proceedings.
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Although this is an appeal by the Secretary of State against a decision of the First-tier Tribunal, I will for convenience refer to the parties as they appeared before the First-tier Tribunal.
Introduction
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The appellant is a citizen of Jamaica who was born on 10 September 1980. He came to the United Kingdom in 2002. He has a long-term partner and fiancée (“P”) who is a British citizen. The appellant and P have two children, C1 aged 11 and C2 aged 7. The appellant also has another son, C3 who is 14 years of age and lives with the appellant and P. All the children are British citizens. The appellant also has another son, C4 who lives with his mother.
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The appellant entered the United Kingdom as a visitor on 13 May 2002 with leave valid until 3 November 2002.
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On 25 October 2002, he made an application for leave to remain on the basis of his relationship with a British citizen. That application was refused on 29 September 2003 and the appellant’s appeal was subsequently dismissed on 7 April 2005 and thereafter permission to appeal refused.
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On 12 April 2010, the appellant submitted an application for leave to remain based upon his private and family life. He was granted discretionary leave to remain until 12 November 2013.
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On 15 October 2013, he submitted a further application based upon his private and family life but this was rejected as invalid on the basis that no fee had been paid and the incorrect form used.
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On 2 December 2013, the appellant made a further application for leave based upon his private and family life which remained outstanding until 30 March 2017.
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On 14 July 2014, the appellant was convicted at the Bristol Crown Court of conspiracy to supply controlled drugs in Class B. On 5 March 2015, he was sentenced to four years’ imprisonment.
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On 2 April 2015, the appellant was served with a notice of decision to deport. On 14 July 2015, representations were made on his behalf relying upon Article 8 of the ECHR seeking to bring himself within an exception to the automatic deportation provisions in the UK Borders Act 2007.
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The appellant was released from immigration detention on bail on 29 April 2016.
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On 30 March 2017, the Secretary of State refused the appellant’s claim based upon his human rights. A deportation order was signed on 24 March 2017.
The Appeal
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The appellant appealed to the First-tier Tribunal against the refusal of his human rights claim. Judge J Lebasci allowed his appeal under Article 8 of the ECHR. The judge found, on the basis of the impact upon C3, that there were very compelling reasons such that the public interest was outweighed and the appellant’s deportation was not proportionate.
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The Secretary of State sought permission to appeal to the Upper Tribunal. Permission was initially refused by the First-tier Tribunal on 10 August 2017 but, on 22 September 2017, the Upper Tribunal (UTJ Kekić) granted the Secretary of State permission to appeal.
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The appeal was initially listed before me on 27 March 2018. In a decision dated 11 April 2018, I concluded that the First-tier Tribunal had materially erred in law in allowing the appellant’s appeal under Article 8 and I set the decision aside.
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I directed that the appeal be re-listed in the Upper Tribunal in order for the decision under Article 8 to be re-made. The First-tier Tribunal’s primary findings of fact in paras 29 to 42 were to stand.
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The appeal was re-listed for a resumed hearing before me on 18 September 2018.
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At that hearing, the Secretary of State was represented by Mr Howells and the appellant by Mr Joseph. A bundle of updating evidence was admitted, without objection from Mr Howells, under rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698 as amended).
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Both the appellant and P gave brief oral evidence before me in which they adopted their respective witness statements contained in the new bundle and dated 12 September 2018.
The Issues
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The appellant relies exclusively upon Article 8 of the ECHR.
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The central issues, identified by the parties in their submissions, relate to the impact upon the appellant’s children, in particular his son C3 and his daughter C1, but also his long-term partner, P. In brief, Mr Joseph submitted that the appellant’s deportation would not be in the public interest applying s.117C(6) of the Nationality, Immigration and Asylum Act 2002 (the “NIA Act 2002”). He submitted that the impact upon the appellant’s children was such that his deportation would be “unduly harsh” within Exception 2 set out in s.117C(5) and because of the severity of that impact, s.117C(6) applied because there were “very compelling circumstances, over and above those described in [Exception 2]”. The public interest is, as a consequence, outweighed by the appellant’s circumstances and his deportation would breach Article 8 of the ECHR.
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Mr Joseph relied upon the impact upon C3 which had been considered by the First-tier Judge in paras 29–40 of her determination as part of the preserved findings.
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In addition, and in respect of matters arising since the First-tier Tribunal’s decision, Mr Joseph relied upon the impact upon C1. He relied, in particular, upon the evidence concerning C1’s mental health set out in a number of documents, most recently in a letter dated 3 September 2018 (at pages 20–30) from Loren Green, a Specialist Mental Health Practitioner and Social Worker who has been working with the appellant and his family since April 2011. Mr Joseph relied upon the recent history of C1 engaging in self-harm, involving attempted strangulation and the taking of overdoses, and the safety plan put in place for her. He also relied on the fact, which was not disputed before me, that on 10 September 2018 C1 was diagnosed with Autistic Spectrum Disorder (“ASD”).
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Mr Joseph also placed reliance upon the fact that P was the full-time carer for her mother who, in January 2018, was diagnosed with vascular dementia (having previously been diagnosed as bipolar).
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Mr Joseph submitted that taken cumulatively, and having regard to the seriousness of the appellant’s offending, the impact of his deportation would not only be “unduly harsh” but would be of such impact as to amount to “very compelling circumstances” over and above being simply unduly harsh.
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Mr Howells submitted that the impact upon C1 and C3 was not “unduly harsh”. He relied upon on the appellant’s offending which was of a serious crime such that the public interest was very significant. That was a factor that had to be balanced against the family’s circumstances following MM (Uganda) v SSHD [2016] EWCA Civ 617. He accepted that the appellant had no other convictions but the public interest was nevertheless significant given the offence’s seriousness and the importance of deterring other foreign nationals from committing such crimes. Mr Howells also relied on the appellant’s immigration history. He had entered the UK as a visitor with leave valid until 3 November 2002. Thereafter, the appellant had been in the UK unlawfully apart from a period of discretionary leave between 10 November 2012 and 10 November 2013.
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Mr Howells submitted that Exception 2 required the impact to be “unduly harsh” whilst recognising that the effect of deportation may well be “harsh” that was not sufficient. He relied upon three decisions of the Court of Appeal noting that separation by deportation and the necessary impact upon a family would not usually be sufficient to outweigh the public interest (see LC (China) v SSHD [2014] EWCA Civ 1310 at [24]; SSHD v CT (Vietnam) [2016] EWCA Civ 4 at [18], [19] and [38]; and PF (Nigeria) v SSHD [2015] EWCA Civ 25 at [43]). Mr Howells submitted that whilst it might be difficult for the appellant’s partner to manage the household, she had done so whilst he was in prison or detention for a period of two and a half years and C3 had not been taken into care. The evidence showed that C3’s behaviour had improved. The evidence did not show that C3 would have to go into care if the appellant were deported.
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As regards C1, Mr Howells accepted there was evidence that she self-harmed but that she had not done...
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