Upper Tribunal (Immigration and asylum chamber), 2019-04-15, HU/08635/2017
| Jurisdiction | UK Non-devolved |
| Date | 15 April 2019 |
| Published date | 05 June 2019 |
| Hearing Date | 10 April 2019 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | HU/08635/2017 |
Appeal Number: HU/08635/2017
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/08635/2017
THE IMMIGRATION ACTS
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Heard at Bradford |
Decision & Reasons Promulgated |
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On 10 APRIL 2019 |
On 15 APRIL 2019 |
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Before
UPPER TRIBUNAL JUDGE LANE
Between
EA
(ANONYMITY DIRECTION MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Burrett
For the Respondent: Mrs Pettersen, Senior Home Office Presenting Officer
DECISION AND REASONS
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By a decision promulgated on 6 February 2019, I found that the First-tier Tribunal had erred in law such that its decision fell to be set aside:
“1. I shall refer to the appellant as the respondent and the respondent as the appellant (as they appeared respectively before the First-tier Tribunal). The appellant was born in 1983 and is a male citizen of Turkey. He appealed to the First-tier Tribunal (Judge Spencer) against the decision of the respondent dated 27 July 2017 to refuse his Article 8 human rights claim. The appellant had been served with a deportation order on 30 November 2016. He is married to a British citizen and the couple have two children, E J who was born in 2009 and A G who was born in 2014. The appellant is not the biological father of E J but is the biological father of A G. The appellant’s wife, A G and the E J are British citizens. The First-tier Tribunal in a decision promulgated on 12 December 2017, allowed the appeal. The Secretary of State now appeals, with permission, to the Upper Tribunal.
2. The appeal before the First-tier Tribunal turned on whether the deportation of the appellant would have unduly harsh consequences for his wife and the children. I note that the hearing before the Upper Tribunal took place very shortly before the handing down of the judgment of the Supreme Court in KO (Nigeria) [2018] UKSC 53. I find that the judge’s analysis is inadequate. The judge refers in detail to ZH (Tanzania) [2011] 2 AC 166) at [29]. At [30 – 31], the judge found that it would not be appropriate or reasonable for the children to relocate to Turkey. He found that there would be “linguistic disruption (sic) for both children and social disruption for the elder child.” He considered that there would be a “loss of educational opportunities that are available to the children in the UK” and stated that there was “no evidence … that there is suitable education facility for the child in Turkey.“ It is not entirely clear what the judge means by that last sentence. The judge also found [31] that the children, if they move to Turkey, would have no direct contact with the mother’s family in the United Kingdom. Having rejected the scenario by which the entire family would relocate to Turkey, the judge wrote:
I find that the children should in no way be punished for the appellant’s criminal behaviour. I find it is in their best interests for them to remain in the UK and be close to their mother’s family. I find that if the appellant has to return to Turkey this would break up the close family unit and this will be unduly harsh on both children.
3. The judge has failed to show why, on the facts of this particular case, the separation of the children from their father could have unduly harsh consequences going beyond what would necessarily be involved in the separation of parent from child. The focus of the judge’s analysis is upon the children travelling to Turkey to live with the appellant; the alternative scenario whereby the appellant is deported to Turkey and the children remain in the United Kingdom has been given inadequate consideration.
4. I set aside the decision of the First-tier Tribunal. This is an unusual case in that the drugs offence for which the appellant was convicted did not concern the supply of drugs to others as His Honour Judge Mort observed in his Sentencing Remarks. The unusual nature of the offence was clearly in the First-tier Tribunal Judge’s mind when he considered whether the separation of the appellant from the children by way of deportation would have unduly harsh consequences (see paragraph [25]). The severity of an appellant’s offending should not be considered when determining the best interests of the children (see KO (Nigeria). Both the First-tier Tribunal Judge and Mr Burrett, who appeared before the Upper Tribunal on the appeal, made much of the fact that the appellant had imported drugs for his personal use and that, in consequence, his offence was in some way less serious than convictions involve the sale of drugs. In the light of KO (Nigeria), it may be no longer be arguable that ‘softer’ offending should influence the assessment of undue harshness in a manner which favours an appellant. The decision will be remade in the Upper Tribunal; none of the findings of fact of the First-tier Tribunal shall stand. As indicated, the Upper Tribunal will wish to hear submissions inter alia on the application of KO (Nigeria). Both parties may adduce evidence provided that any documentary evidence is sent to the other party and to the Upper Tribunal no less than 10 days prior to the resumed hearing in the Upper Tribunal.
Notice of Decision
5. The decision of the First-tier Tribunal, which was promulgated on 12th December 2017 is set aside. None of the findings of fact shall stand. The decision will be remade in the Upper Tribunal following a resumed hearing at Bradford on a date to be fixed before Upper Tribunal Judge Lane.”
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The resumed hearing took place before me at Bradford on 10 April 2019. I heard evidence from a number of witnesses including the appellant himself, his partner, the partner’s aunt and both of the partner’s parents. I heard oral submissions from both representatives and then reserved my decision.
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The evidence of the witnesses was not controversial. There was an issue as regards whether the younger child A of the appellant and his partner was attending an infant school but it seems clear that he has had his entry delayed until September 2019. Otherwise, the facts were very much as they had been before the First-tier Tribunal save that the appellant’s partner is now in an advanced stage of pregnancy.
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The issue in the appeal is a relatively narrow one. It focuses upon the application of section 117C of the 2002 Act:
‘Exception 2 applies where C has a genuine and subsisting relationship of qualifying partner or a genuine and subsisting parental relationship with a qualifying child and the effect of C’s deportation on the partner or the child would be unduly harsh.’
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Both parties accept that the appellant has a genuine and subsisting relationship with his partner L and with that the...
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