Upper Tribunal (Immigration and asylum chamber), 2019-03-21, HU/19702/2016
| Jurisdiction | UK Non-devolved |
| Date | 21 March 2019 |
| Published date | 07 May 2019 |
| Hearing Date | 14 March 2019 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | HU/19702/2016 |
Appeal Number HU/19702/2016
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/19702/2016
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision & Reasons Promulgated |
|
On 14 March 2019 |
On 21 March 2019 |
|
|
|
Before
UPPER TRIBUNAL JUDGE FINCH
Between
JIANHUANG [X]
Appellant
-and-
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation
For the Appellant: Mr. T. Jones of counsel, instructed by Haq Hamilton
For the Respondent: Ms A. Everett, Home Office Presenting Officer
DECISION AND REASONS
BACKGROUND TO THE APPEAL
1. The Appellant is a national of China. He entered the United Kingdom and applied for asylum on 8 April 2003. This application was refused on 23 May 2003. He appealed but his appeal was dismissed on 23 September 2003. He was granted permission to appeal to the Asylum and Immigration Tribunal, but his appeal was dismissed and he became appeal rights exhausted on 5 April 2005.
2. The Appellant submitted further representations on 29 May 2008 and on 16 December 2009 he was granted indefinite leave to remain. On 14 July 2011 he was refused naturalisation as a British citizen, as he had failed to disclose the fact that he had been convicted on 8 October 2009 of using a vehicle whilst uninsured and driving otherwise than in accordance with a licence.
3. On 10 July 2014 the Appellant was convicted on two counts of possession of a Class A drug with intent to supply and one count of possession of a Class C drug with intent to supply and on 11 July 2014 he was sentenced to three years and six months imprisonment
4. The Appellant was put on notice that he was liable to deportation on 15 September 2014 and on 6 October 2014 he returned the questionnaire which had been sent to him. Nevertheless, on 26 February 2015 the Respondent refused the Appellant’s human rights claim and made a deportation order against him. He also certified his human rights claim under section 94B of the Nationality, Immigration and Asylum Act 2002 and the Appellant was removed from the United Kingdom on 1 August 2016.
5. The Appellant appealed against this decision on the basis that deportation would breach Article 8 of the European Convention on Human Rights as he had lived in the United Kingdom for twelve years and had a wife and three children who were British citizens. First-tier Tribunal Judge Beach dismissed his appeal in a decision promulgated on 23 November 2017. The Appellant appealed against this decision and he was granted permission to appeal to the Upper Tribunal by First-tier Tribunal Judge Hollingworth on 8 July 2018. His appeal was dismissed by Mrs Justice Moulder and Upper Tribunal Judge Storey in a decision promulgated on 4 July 2018. However, on 21 January 2019, The Honourable Mr. Justice Lane reviewed the Upper Tribunal’s decision under rule 45 of the Tribunal Procedure (Upper Tribunal) Rules 2008
6. The Appellant sought permission to appeal to the Court of Appeal against this decision and on 21 January 2019 the Honourable Mr Justice Lane reviewed the decision made by the Upper Tribunal under rule 45 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and set it aside. This was on the basis that KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53 was decided after the Upper Tribunal reached its decision and may have had a material effect on it. The parties were given 14 days to make any representations under rule 46(3) but have not chosen to do so.
ERROR OF LAW HEARING
7. The parties were directed to file their skeleton arguments no later than five days before the date of the re-hearing in the Upper Tribunal. The Appellant filed his skeleton argument and his bundle on 7 March 2019. He also applied to amend his grounds of appeal in order to take into account the Supreme Court decision in KO (Nigeria). At the start of the error of law hearing, the Home Office Presenting Officer stated that, in the light of the litigation history of this appeal, she was content for the Appellant’s grounds to be amended.
8. Permission to appeal against the decision reached by First-tier Tribunal Judge Beach was granted by First-tier Tribunal Judge Hollingworth on 8 July 2018. Rule 23 of the Tribunal Procedure (Upper Tribunal) Rules 2008 states that:
“In an asylum case or an immigration case in which the First-tier Tribunal has given permission to appeal, subject to any direction of the First-tier Tribunal or the Upper Tribunal, the application for permission to appeal sent or delivered to the First-tier Tribunal stands as the notice of appeal…”.
9. However, the law has moved on this 8 July 2018 and I note that the Upper Tribunal has the power to direct that grounds for an application for permission to appeal can be amended. When doing so, the overriding objective in rule 2 applies and I find that, in order to hear this appeal fairly and justly and to avoid any further delay in reaching a final decision, it is in the interests of justice for the Appellant to be permitted to amend his grounds of appeal to take into account the decision in KO (Nigeria). I also use the powers deriving from rule 5(3)(c) of the Procedure Rules to permit such an amendment.
10. The parties also agreed that, as the Upper Tribunal’s previous decision had been reviewed and set aside, the first issue was whether there was an error of law in First-tier Tribunal Judge Beach’s decision. Both counsel for the Appellant and he Home Office Presenting Officer made oral submissions and I have referred to the content of these submissions, where relevant, in my decision below.
ERROR OF LAW DECISION
11. The Appellant had been sentenced to three years and six months imprisonment and, therefore, section 32 of the UK Borders Act 2007 applied and he was subject to automatic deportation unless to do so would amount to a breach of the European Convention on Human Rights. The sentencing remarks confirm that when the Appellant was detained he had a quantity of methylamphetamine in his pockets, bag and home and that ecstasy tablets and a meth lab in an unlocked room were also found in his home. The Sentencing Judge noted that he had relied on a false account at his trial and that he had not displayed any regret or remorse.
12. In keeping with this statutory provision, paragraph 397 of the Immigration Rules states that:
“A deportation order will not be made if the person’s removal pursuant to the order would be contrary to the UK’s obligations under the Refugee Convention or the Human Rights Convention…”.
13. This is also an appeal which had been certified under section 94B of the Nationality, Immigration and Asylum Act 2002 on the basis that the Respondent considered that, despite the appeals process not having been begun or not having been exhausted…removing P from…the United Kingdom, pending the outcome of an appeal in relation to P’s claim, would not be unlawful under section 6 of the Human Rights Act 1998… This was because, for the purposes of section 94B (3) of the Act, the Respondent had certified that his removal would not give rise to a real risk of serious irreversible harm. The Appellant did not challenge this certification and, therefore, he was not in the United Kingdom at the time of his appeal.
14. Paragraph 398 of the Immigration Rules states that:
“Where a person claims that their deportation would be contrary to the UK’s obligations under Article 8 of the Human Rights Convention, and
(b) the deportation of the person from the UK is conducive to the public good because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than four years but at least 12 months…
the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors”.
15. Paragraph 399 states that:
“This paragraph applies where paragraph 398(b) or (c) applies if
(a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and
(i) the child is a British citizen; or
(ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case
(a) it would be unduly harsh for the child to live in the country to which the person is to be deported; and
(b) it would be unduly harsh for the child to remain in the UK without the person who is to be deported”
16. Section 117A of the Nationality, Immigration and Asylum Act 2002 states that:
“(1) This part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts-
(a) breaches a person’s right to respect for private and family life under Article 8, and
(b) as a result, would be unlawful under section 6 of the Human Rights Act 1998.
(2) In considering the public interest question, the court or tribunal must (in particular) have regard-
(a) in all cases, to the considerations listed in section 117B, and
(b) in cases concerning the deportation of foreign criminals to the considerations listed in section 117C”.
17. Section 117C...
To continue reading
Request your trial