Upper Tribunal (Immigration and asylum chamber), 2018-08-09, PA/00675/2017
| Jurisdiction | UK Non-devolved |
| Date | 09 August 2018 |
| Published date | 24 August 2018 |
| Hearing Date | 17 July 2018 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | PA/00675/2017 |
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00675/2017
THE IMMIGRATION ACTS
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Heard at Bradford |
Decision & Reasons Promulgated |
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On 17th July 2018 |
On 09th August 2018 |
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Before
UPPER TRIBUNAL JUDGE REEDS
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
And
MK
(ANONYMITY DIRECTION MADE)
Respondent
Representation:
For the Appellant: Mr Diwyncz Senior Presenting Officer
For the Respondent: Mr Karnik, Counsel instructed on behalf of the Appellant
DECISION AND REASONS
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The Secretary of State appeals, with permission, against the decision of the First-tier Tribunal (Judge Robson) promulgated on the 3rd October 2017 in which the Tribunal allowed the appeal of MK against the decision of the Secretary of State to refuse his protection and human rights claim in the context of the Respondent having made a deportation order against him under Section 32(5) (of the UK Borders Act 2007).
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I make a direction regarding anonymity under Rule 14 of the Tribunal Procedure (Upper Tribunal Rules) Rules 2008. Unless and until a court directs otherwise the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly refer to him or members of his family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.
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Although the Secretary of State is the Appellant before the Tribunal, I will for ease of reference refer to him as the Respondent as he was the Respondent in the First-tier Tribunal. Similarly I will refer to MK as the Appellant as he was the Appellant before the First-tier Tribunal.
Background
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The background to the appeal is set out in the papers and the determination of the First-tier Tribunal and also in the decision letter of the Secretary of State dated 10th January 2017. The Appellant is a national of Iraq. He entered the United Kingdom in 2004 and made a claim for asylum. The basis of his claim to asylum was that he had had a problem with his father because he had wanted him to marry his cousin but had refused and therefore he was at risk from his father. He could not return to his home town of Erbil because his father would find him and kill him and could not move anywhere else in Kurdistan (see paragraph 27 of decision of Judge Andrews). The Appellant therefore left Iraq. His claim for asylum was refused and came before the Tribunal on 20 September 2004. In a decision set out in the Respondent’s bundle, the judge accepted the account given as set out above and this formed the factual basis for the determination. The judge found that the claim did not engage one of the five reasons under the Refugee Convention nor did it cross the threshold to be a breach of Article 2 or Article 3 on the basis that there was sufficiency of protection in Kurdistan or in the alternative it would not be unreasonable or unduly harsh to expect the Appellant to locate to a different part of Iraq. Thus the appeal was dismissed. Permission to appeal was refused and he became appeal rights exhausted in January 2005.
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On the 20 February 2008 and 8 March 2010 further submissions were made on the basis of Article 8. In 2009 he was married to Y in an Islamic ceremony the parties having known each other since 2006. She had previously been married and had a number of children from that earlier relationship. On 25 August 2010 he was granted discretionary leave on the basis of his Islamic marriage to a British citizen and birth of a child until August 2013. Between 2010 and August 2013 the Appellant travelled to Iraq for periods of time.
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On 23 August 2013 made an application for extension of discretionary leave and this was granted, valid until the 18th of February 2017.
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He has committed criminal offences whilst in the United Kingdom. In 2016 at the magistrates court he was convicted of failing to provide a specimen for analysis (driving or attempting to drive) which he received a community order and later in 2016 at the same magistrates court was convicted of further driving offences (driving without due care and attention) for which he received no separate penalty and his driving licence was endorsed.
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On 29 July 2016 at the Crown Court he was convicted of dangerous driving to which he was sentenced to 14 months imprisonment, driving while disqualified from which he was sentenced to 3 months imprisonment to be served consecutively, and of using a vehicle without insurance for which he received no separate penalty. In addition he was disqualified from driving for three years. His total sentence was one of 17 months imprisonment.
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On 22 August 2016 he was served with a stage I decision to deport notice and following this in September 2016 his legal representatives made submissions on his behalf raising Articles 3 and 8 of the ECHR. In a decision letter of 10 January 2017 the Respondent made a decision to refuse a protection and human rights claim.
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Thus the appeal came before the First-tier Tribunal on the 11th September 2017. In a determination promulgated on 3rd October 2017, the First-tier Tribunal allowed his appeal on all grounds (Article 15 (c) and Article 8).
The Appeal before the Upper Tribunal:
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The Secretary of State sought to appeal that decision and permission was granted by FtT Judge Martins on the 25th October 2017 for the following reasons: -
“The grounds assert that the judge failed to take into account the decision in AA (Iraq) v SSHD [2017] EWCA Civ 994, in which amended country guidance is provided, showing that the Tribunal is incorrect when concluding that the inability to currently remove the Appellant, creates a risk to the Appellant under Article 15 C on return to his home area Erbil. As there are findings that the Appellant is not at risk in his home area, there is no requirement to him to relocate elsewhere in Iraq. Further it is noted that the amended guidance of the Court of Appeal is to the effect that lack of documentation, cannot create any risk to the Appellant on the basis of Article 15 C, unless there is a risk to the Appellant on return to Iraq.
It is further submitted that the judge failed to make any findings, in respect of the Appellant’s ability to obtain a new passport. It is submitted that the judge failed to consider the Appellant’s Article 8 claim, with reference to the requirements of paragraph 399 of the Immigration Rules and section 117C of the NIA Act 2002. There is also no finding reasoning that the Appellant’s deportation would be unduly harsh. The assertion the grounds are evident in the face of the decision. They disclose an arguable error of law. An arguable error of law is shown.”
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At the hearing before the Upper Tribunal I heard submissions from each of the advocates, Mr Diwncyz on behalf of the Respondent and Mr Karnik on behalf of the Appellant who also had provided a Rule 24 response. It is not necessary to set out the submissions of each of the parties as they are set out in the record of proceedings and I will set out the relevant aspects of those submissions when dealing with the grounds advanced on behalf of the parties and my consideration of those issues.
Article 8:
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I shall begin with the grounds advanced on behalf of the Respondent that concerns the judge’s assessment of the Article 8 claim.
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It is submitted on behalf of the Respondent that the judge failed to consider the Appellant’s Article 8 claim with reference to the requirements of paragraph 399 of the Immigration Rules section 117C of the Nationality, Immigration and Asylum Act 2002. In particular, as the Appellant was a foreign criminal who had been sentenced to a period of imprisonment of 17 months, he was required to demonstrate that his deportation would result in “unduly harsh” outcomes for his partner and children.
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When applied to the determination, the judge failed to provide any findings or reasoning to reach a decision that the Appellants deportation would be unduly harsh. Indeed in the oral submissions made it was submitted that there had been no proper consideration of the public interest when reaching the decision that there was a disproportionate interference with the Appellant’s wife’s and child human rights (see paragraph 76 of the determination).
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Mr Karnik in his skeleton argument and his oral submissions argued that contrary to the grounds of appeal, the judge did make reference to the correct legal framework having referred to it at [67] and that he had also considered the factors at [74] and had applied the test at [76] as to whether the decision was disproportionate (applying the decision in Hesham Ali [2016] 1 WLR 4799).
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He submitted that the judge had found he had no ties to Iraq and that his wife’s ties were in the UK and that they had a British child. Where it was accepted that return was not feasible and that his sentence of 17 months imprisonment fell to the “lower end of the bracket covered by the Immigration Rules” the decision could not be called perverse. In his oral submissions he made reference to the evidence given by the probation officer as to his positive behaviour in prison and that when putting the proportionality balance, those factors demonstrated that the decision could not properly be said to a perverse conclusion on the evidence that was...
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