Upper Tribunal (Immigration and asylum chamber), 2015-12-09, DA/01101/2014
| Jurisdiction | UK Non-devolved |
| Date | 09 December 2015 |
| Published date | 04 July 2016 |
| Hearing Date | 09 November 2015 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | DA/01101/2014 |
Appeal Number: DA/01101/2014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/01101/2014
THE IMMIGRATION ACTS
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Heard at UT(IAC)Birmingham |
Decision and Reasons Promulgated |
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On 8th September and 9th November 2015 |
On 9th December 2015 |
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Before
UPPER TRIBUNAL JUDGE COKER
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
And
FM
Respondent
Representation:
For the Appellant: Mr I Richards (on 8th September) and Mr D Mills (on 9th November) Senior Home Office Presenting Officer
For the Respondent: Mr A Pipe, instructed by TRP solicitors
DECISION AND REASONS
I make an order pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 prohibiting the disclosure or publication of anything that might lead members of the public to identify the parties identified in this decision as FM (Mr M), Ms A or S. Any failure to comply with this direction could give rise to contempt of court proceedings.
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The respondent made a decision that s32 (5) UK Borders Act 2007 applied to Mr M following his conviction for numerous offences for which he received lengthy prison sentences. A deportation order was signed on 29th May 2014. Mr M appealed the decision and by a decision promulgated on 18th June 2014 a panel of the First-tier Tribunal allowed the appeal on the basis that the removal of Mr M would be a breach of his human rights.
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The Secretary of State for the Home Department (hereafter the SSHD) sought and was granted permission to appeal the decision of the First-tier Tribunal. Following a hearing on 8th September 2015 I found, for the reasons that follow, that the First-tier Tribunal had made an error of law such as to require that its decision be set aside so that the Upper Tribunal would substitute a fresh decision to allow or to dismiss the appeal against the deportation decision.
Background
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Mr M, a Jamaican citizen, arrived in the UK on 20th July 2001; he claimed asylum on 14th March 2002 such claim being refused on 5th June 2002. He did not appeal the immigration decision that accompanied the refusal of his asylum claim at that time and remained in the UK unlawfully. He submitted an out of time appeal against that decision which was refused on 6th May 2005 although whether it was rejected as being out of time or refused on its merits is not made clear in the papers before me. In the meantime he had been arrested for motoring offences and detained under Immigration powers.
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On 22nd November 2004 he applied for leave to remain as the spouse of a person present and settled in the UK, outside the Rules, such application being refused with no right of appeal on 2nd February 2006. He then voluntarily left the UK on 14th February 2006.
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An application for entry clearance as a spouse was made on 7th April 2006 and refused on 11th May 2006. His appeal was successful in a decision dated 11th June 2007 and on 25th September 2007 he was granted entry clearance until 25th September 2009, arriving in the UK on 20th October 2007.
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An application for indefinite leave to remain as a spouse of Ms A, a British citizen, was made on 18th November 2009. According to the reasons set out in the decision which led to the instant appeal, that application (which was made when Mr M had no leave to remain in the UK) remains outstanding. It was not submitted to me that the decision was subsumed within the deportation decision and so far as I am aware no decision has yet been made on that application.
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On 20th September 2010 Mr M was convicted of (and sentenced to):
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Conspiracy to commit robbery (9 years imprisonment)
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Having a firearm with intent to commit an indictable offence (5 years imprisonment to run concurrent)
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Having an imitation firearm with intent to commit indictable offence (30 months imprisonment to run concurrent)
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Possessing prohibited weapon (54 months imprisonment to run concurrent)
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Possessing a firearm without a certificate (54 months imprisonment to run concurrent)
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Possessing ammunition without a certificate (33 months imprisonment to run concurrent)
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S117D(2) Nationality, Immigration and Asylum Act 2002 defines a foreign criminal as, inter alia, a person who is not a British citizen who has been convicted of an offence and sentenced to a period of imprisonment of at least 12 months. S117D(4)(b) further states that reference to a person who has been sentenced to a period of imprisonment “does not include a person who has been sentenced to a period of imprisonment of that length of time only by virtue of being sentenced to consecutive sentences amounting in aggregate to that length of time”. Plainly this appellant is a foreign criminal who has been sentenced to a period of imprisonment of at least 12 months (and more than 4 years – see s117C (6)). Mr M had been detained since September 2009; in April 2014 Mr M was released from custody on bail and he, his wife (Ms A) and their son S (date of birth 11th September 2002) lived as a family unit since then.
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The SSHD accepts that it is not in the best interests of the child or Ms A to live in Jamaica; the child S has been diagnosed with Autism Spectrum Disorder; Ms A runs a successful nursery business; the couple were expecting a second child (which has now been born although it was not argued before the First-tier Tribunal that that child had any rights as an ‘unborn child’).
The law
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The Immigration Rules, in so far as relevant to Mr M, are as follows:
‘396. Where a person is liable to deportation the presumption shall be that the public interest requires deportation. It is in the public interest to deport where the Secretary of State must make a deportation order in accordance with section 32 of the UK Borders Act 2007.
397. 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. Where deportation would not be contrary to these obligations, it will only be in exceptional circumstances that the public interest in deportation is outweighed.
A398. These rules apply where:
(a) a foreign criminal liable to deportation claims that his deportation would be contrary to the United Kingdom’s obligations under Article 8 of the Human Rights Convention;
(b) a foreign criminal applies for a deportation order made against him to be revoked.
398. Where a person claims that their deportation would be contrary to the UK's obligations under Article 8 of the Human Rights Convention, and
(a) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years;
(b) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months; or
(c) the deportation of the person from the UK is conducive to the public good and in the public interest because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law,
the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A.
399. 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; or
(b) the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen or settled in the UK, and
(i) the relationship was formed at a time when the person (deportee) was in the UK lawfully and their immigration status was not precarious; and
(ii) it would be unduly harsh for that partner to live in the country to which the person is to be deported, because of compelling circumstances over and above those described in paragraph EX.2. of Appendix FM; and
(iii) it would be unduly harsh for that partner to remain...
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