Upper Tribunal (Immigration and asylum chamber), 2018-03-28, PA/04542/2017
| Jurisdiction | UK Non-devolved |
| Date | 28 March 2018 |
| Published date | 17 April 2018 |
| Hearing Date | 20 February 2018 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | PA/04542/2017 |
Appeal Number: pa/04542/2017
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: pa/04542/2017
THE IMMIGRATION ACTS
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Heard at Newport |
Decision & Reasons Promulgated |
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On 20 February 2018 |
On 28 March 2018 |
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Before
UPPER TRIBUNAL JUDGE GRUBB
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
h b k
(ANONYMITY DIRECTION made)
Respondent
Representation:
For the Appellant: Mr D Mills, Senior Home Office Presenting Officer
For the Respondent: Mr S Clarke, instructed by Migrant Legal Project (Cardiff)
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 (H B K). 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, for convenience I will refer to the parties as they appeared before the First-tier Tribunal.
Background
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The appellant is a citizen of Iran who was born on 6 January 1990. He arrived in the United Kingdom on 1 March 2010. He claimed asylum on 9 March 2010 but that application was refused by the Secretary of State on 26 March 2010 and his subsequent appeal to the First-tier Tribunal was dismissed on 20 May 2010. Following the refusal of permission to appeal, he became appeal rights exhausted on 2 September 2010.
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On 16 July 2010, he was convicted at the Worcester Crown Court on three counts: first, assault occasioning actual bodily harm contrary to s.47 of the Offences Against the Person Act 1861 and secondly, two offences of assault. In respect of the first offence, having pleaded guilty, he was sentenced to a period of fifteen months’ imprisonment and, in respect of the other offences, he was sentenced to concurrent terms of three months’ imprisonment in respect of each one.
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On 25 September 2012, the appellant was notified that he was liable to be deported under the automatic deportation provisions in the UK Borders Act 2007. On 19 April 2013, a deportation order was signed against the appellant which was served upon him on 23 April 2013. On 7 March 2014, he lodged an out of time appeal against deportation. On 15 April 2014, his appeal was determined to be out of time and he became appeal rights exhausted again.
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On 1 December 2016, in response to a s.120 notice, the appellant made further submissions.
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On 27 April 2017, the Secretary of State refused the appellant’s claims for asylum, humanitarian protection and under Art 8 of the ECHR.
The Appeal to the First-tier Tribunal
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The appellant appealed to the First-tier Tribunal. The appeal was heard by Judge Price on 4 July 2017. In a decision promulgated on 2 August 2017, Judge Price dismissed the appellant’s appeal under the Refugee Convention and on humanitarian protection grounds. That decision has not been challenged by the appellant and I need say no more about it.
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Before Judge Price, the appellant relied upon Art 8 and, in particular, his relationship with his daughter (“L”), a British citizen for whom he claimed to be the primary carer. In particular, relying upon Exception 2 in s.117C(5) of the Nationality, Immigration and Asylum Act 2002 (the “NIA Act 2002”), the appellant argued that he had a “genuine and subsisting parental relationship” with L, a qualifying child and his deportation would be “unduly harsh”. Consequently, the public interest did not require his deportation in accordance with s.117C(3) of the NIA Act 2002.
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Judge Price accepted that the appellant was the primary carer of L. The judge accepted that whilst the appellant’s partner (and mother of L) was at work – she worked for the British Navy – the appellant was L’s carer. The judge accepted evidence from an independent social worker, Mr Peter Horrocks that if the appellant were deported L would “suffer great trauma and distress, which would cause harm to her emotional development because of the loss of her primary carer and her secure attachment figure”.
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Judge Price concluded that it was not in the best interests of L to be separated from the appellant. Judge Price went on to find that it would be “unduly harsh” for the family to continue their family life in Iran and, importantly for the purposes of this appeal, that it would be unduly harsh for L to remain in the UK without the appellant. As a consequence, Judge Price allowed the appellant’s appeal under Art 8 of the ECHR.
The Appeal to the Upper Tribunal
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The Secretary of State sought permission to appeal to the Upper Tribunal on essentially three grounds. First, the judge had failed to have “full regard” to the appellant’s criminal and immigration history in concluding that it would be “unduly harsh” on L if the appellant were deported. That was contrary to the approach set out by the Court of Appeal in MM (Uganda) v SSHD [2016] EWCA Civ 450. Secondly, the judge had failed properly to have regard to the public interest by concluding that the public interest was lessened due to the fact that the appellant had rehabilitated and no longer drank alcohol, which was found by the sentencing judge to be central to his offending. Thirdly, following OH (Serbia) v SSHD [2008] EWCA Civ 694, the judge had failed to take into account two of the facets of the public interest, namely ‘public revulsion’ and ‘deterrence’ which are “weightier considerations in the public interest”.
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On 9 October 2017, the First-tier Tribunal (Judge E B Grant) granted the Secretary of State permission to appeal.
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On 30 November 2017, the appellant filed a rule 24 response seeking to uphold the judge’s decision.
The Submissions
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The central plank of Mr Mills’ submissions made on behalf of the Secretary of State was that the judge had failed properly to take into account the three facets of the public interest recognised in OH (Serbia) v SSHD [2008] EWCA Civ 694 in reaching her finding at paras 63 – 71 that the effect upon L of the appellant’s deportation would be “unduly harsh”. Mr Mills somewhat stepped back from the assertion in the grounds that the judge was not entitled to take into account the appellant’s rehabilitation in assessing his future risk to the public. However, Mr Mills submitted that, in accordance with MM (Uganda) v SSHD, the judge had failed to take into account the seriousness of the offence and that deportation acted as a deterrence to other foreign nationals committing offences and in reflecting the public revulsion engendered by such serious offences. Anticipating the submissions to be made by Mr Clarke on behalf of the appellant (and foreshadowed in the rule 24 response), Mr Mills did not accept that the Supreme Court in Ali v SSHD [2016] UKSC 60 had removed from the ambit of the “public interest” that of ‘public revulsion’. He submitted that Lord Kerr’s rejection of that facet of the public interest at [168] was in a dissenting judgment and the same approach by Lord Wilson at [70], modifying what he had previously said himself in OH (Serbia), was not subject to the express agreement of the other Justices in particular Lord Reed (who had delivered the leading judgment) with whose judgment the other Justices agreed.
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Mr Clarke, on behalf of the appellant accepted that the concept of the “public interest” went beyond assessing whether there was a risk to the public as a result of future offending. He accepted that deterrence of others was an aspect of the legitimate aim of preventing crime and disorder. Nevertheless, he submitted that in Ali the Supreme Court had, in effect, recognised that it was difficult to connect “public revulsion with that legitimate aim”.
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Mr Clarke submitted that the judge had properly taken into account the required facets of the “public interest”. He drew my attention to her reference to the sentencing judge’s remarks at paragraph 42.1 and, he submitted, it was not necessary for the judge to repeat everything at paras 69 – 71 when referring to the “public interest” and carrying out the balancing exercise required by MM (Uganda) in assessing whether the appellant’s deportation would be “unduly harsh” upon L. He submitted that the judge had properly assessed L’s best interests which were that she should not be separated from the appellant. He submitted that to the extent that the grounds suggested that the judge had erred in assessing L’s best interests without regard to the public interest, that was contrary to the approach in ZH (Tanzania) v SSHD [2011] UKSC 4. Mr Clarke submitted that by referring to the judge’s failure to have “full regard” to the appellant’s criminal and immigration history, it was clear that the challenge was to the weight that had been...
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