Upper Tribunal (Immigration and asylum chamber), 2016-07-06, DA/01775/2014
| Jurisdiction | UK Non-devolved |
| Date | 06 July 2016 |
| Published date | 09 June 2017 |
| Hearing Date | 08 January 2016 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | DA/01775/2014 |
Appeal Number: DA/01775/2014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/01775/2014
THE IMMIGRATION ACTS
|
Heard at Field House |
Determination Promulgated |
|
on 8 January 2016 |
On 6 July 2016 |
Before
UPPER TRIBUNAL JUDGE HANSON
UPPER TRIBUNAL JUDGE WIKELEY
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
And
OAO
[ANONYMITY DIRECTION MADE]
Respondent
Representation:
For the Appellant: Mr P Duffy Senior Home Office Presenting Officer
For the Respondent: Ms E Greenwood of Counsel instructed by G Singh Solicitors
DECISION AND REASONS
Introduction
-
In this appeal the Secretary of State appeals against the decision of the First-tier Tribunal (Judge Beach) promulgated on 18 February 2015. The First-tier Tribunal had allowed the appeal by Mr OAO (hereafter simply “OAO”) against the Secretary of State’s decision taken on 28 August 2014 to deport him from the United Kingdom (UK).
-
In summary OAO, who is a citizen of Nigeria, had been convicted of several offences of benefit fraud and had been sentenced to two years’ imprisonment in December 2010. OAO is currently the sole carer of his son J, a British citizen now aged 15. The First-tier Tribunal allowed OAO’s appeal against the deportation decision having found that he satisfied the requirements of Paragraph 399 of the Immigration Rules (“the Rules”). In particular, the First-tier Tribunal concluded “it would be unduly harsh for the child to remain in the UK without the person who is to be deported” within limb (b) of Paragraph 399(a)(ii).
-
We held a hearing on 6 November 2015 at which we ruled that the First-tier Tribunal’s decision had involved an error of law. We concluded that the First-tier Tribunal had failed to apply the correct legal test under Paragraph 399 and had also failed to provide adequate reasons for its decision. We made further directions for a resumed hearing which took place before the Upper Tribunal on 8 January 2016.
-
Having set aside the decision of the First-tier Tribunal, we substitute a fresh decision, namely to dismiss OAO’s appeal against the deportation order.
-
This appeal also raises an important point of construction relating to the meaning of the expression “unduly harsh” in Paragraph 399 of the Rules (in effect from 28 July 2014, Statement of Changes in Immigration Rules, HC 395 as amended by HC 532). In addressing this question of interpretation we consider the difference of approach as between the Upper Tribunal’s decisions in MAB (para 399; “unduly harsh” USA [2015] UKUT 00435 (IAC) and KMO (section 117 – unduly harsh) Nigeria [2015] UKUT 00543 (IAC).
-
The legal issue raised by those decisions, in short, is whether the assessment under Paragraph 399 as to the impact of OAO’s deportation on the child is to be informed by the seriousness of the offence committed by the foreign criminal facing deportation, or whether the assessment is focussed solely on the impact on the innocent family member (here J), without regard to the gravity of the offence giving rise to the deportation order.
-
The decision was made in principle shortly after the hearing. The delay in this matter has been occasioned by the knowledge that the Court of Appeal were to hear appeals against the two conflicting Upper Tribunal decisions in MAB and KMO. That has now occurred and judgment handed down with neutral citation MM (Uganda) and anr v Secretary of State for the Home Department [2016] EWCA Civ 450.
The background facts
-
OAO was born in Nigeria in 1964. He came to the UK in August 1986. He has what the First-tier Tribunal rightly described as “an appalling immigration history” (at [54]) – it is said he was initially given 6 months leave to enter as a visitor, although there is no proof of this. He has subsequently remained in the UK without leave and, as the First-tier Tribunal found, “has made very little effort to regularise his status in the UK until deportation proceedings were commenced” (at [54]).
-
OAO married a British national in 1989 and they have five children – an older son (D) and three daughters, all now aged in their 20s, and a younger son (J), who is 15. All five children are UK citizens. The couple separated in 2009, the children remaining with their father, and divorced in 2013.
-
On 15 December 2010 OAO was convicted at Basildon Crown Court of six counts of making dishonest representations to obtain benefit and two counts of producing/furnishing false documents/information. He was sentenced to two years’ imprisonment for each offence to run concurrently. HH Judge Lodge, in his terse but pointed sentencing remarks, described OAO as “a man who is dishonest to the core”. The Judge noted that OAO had embarked “on a course of conduct involving creating a wholly fictitious claim for benefit to profit for yourself, and you maintained that over a number of years. Nothing other than a substantial custodial sentence is appropriate.” The Judge continued “I take the view this is an offence which is fraudulent from the outset, professionally planned, and continued over a period of time, involving multiple frauds”, including using the identities of other people.
-
OAO was actually in prison for 7 months until late July 2011, when he was released early for good behaviour, with the remainder of the term being served on licence. During his period of imprisonment OAO’s older son D (then 21) cared for J (then aged 10) with help from the other siblings and OAO’s friends.
-
On 16 June 2014 OAO was convicted at Isleworth Crown Court of possession/control of identity documents with intent and was sentenced to a community order and a curfew requirement for 4 months with electronic tagging.
-
The relevant chronology in this appeal, taking it forward to the Upper Tribunal final hearing, can thus be summarised as follows:
-
Date
Events
10 October 1964
Claimant’s date of birth
August 1986
Claimant arrives in UK from Lagos and is (apparently) granted 6 months leave to enter as a visitor
August 1989
Claimant marries R, a UK national
November 1989
Claimant’s son D born (now 26)
June 1991
Claimant’s daughter Da born (now 25)
June 1993
Claimant’s daughter R born (now 23)
September 1994
Claimant’s daughter E born (now 21)
May 2000
Claimant’s son J born (now 16)
2009
Claimant and his wife separate
15 December 2010
Claimant sentenced to 2 years’ imprisonment for benefit fraud
29 July 2011
Claimant released from prison
January 2013
Claimant and wife divorced
21 October 2013
Claimant served with deportation order (later withdrawn)
16 June 2014
Claimant sentenced to community order for further offence
30 August 2014
Claimant served with deportation order
13 January 2015
First-tier Tribunal hears and allows deportation appeal
16 March 2015
First-tier Tribunal refuses Secretary of State’s application for permission to appeal
11 June 2015
Upper Tribunal Judge Storey grants Secretary of State’s renewed application for permission to appeal
6 November 2015
Upper Tribunal error of law hearing
8 January 2016
Upper Tribunal resumed hearing
OAO’s Appeal to the First-tier Tribunal
-
As noted at [2] above, following...
To continue reading
Request your trial