Upper Tribunal (Immigration and asylum chamber), 2019-06-26, HU/15584/2018
| Jurisdiction | UK Non-devolved |
| Date | 26 June 2019 |
| Published date | 22 August 2019 |
| Hearing Date | 06 June 2019 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/15584/2018 |
Appeal Number: HU/15584/2018
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/15584/2018
THE IMMIGRATION ACTS
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Heard at Cardiff Civil Justice Centre |
Decision & Reasons Promulgated |
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On 6 June 2019 |
On 26 June 2019 |
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Before
UPPER TRIBUNAL JUDGE GRUBB
Between
the Secretary of State for the Home Department
Appellant
and
j k
(ANONYMITY DIRECTION made)
Respondent
Representation:
For the Appellant: Mr C Howells, Senior Home Office Presenting Officer
For the Respondent: Mr P J Lewis instructed by Legal Rights Partnership
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 members of the public identifying the respondent (JK). 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, I shall for convenience refer to the parties as they appeared before the First-tier Tribunal.
Background
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The appellant is a citizen of Rwanda who was born on 20 April 1964. He has been lawfully resident in the United Kingdom since February 2002 and was granted indefinite leave to remain in 2007. His wife and three daughters joined him in the UK on 1 July 2008. His two elder daughters are aged 22 and 18 and both are in university. His youngest daughter, “M” is 13 years of age.
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On 9 December 2016, the appellant was convicted at the Swansea Crown Court of one offence of theft. He was sentenced to twelve months’ imprisonment.
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On 21 December 2016, the appellant was served with a notice that it was proposed to deport him in accordance with the automatic deportation provisions in the UK Borders Act 2007. He subsequently made a human rights claim on 12 January 2017 (supplemented by further submissions during 2017). On 17 July 2018, the Secretary of State refused the appellant’s human rights claim under Art 8 of the ECHR. On 9 July 2018, the Secretary of State signed a deportation order in respect of the appellant.
The Appeal to the First-tier Tribunal
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The appellant appealed to the First-tier Tribunal. He relied upon Art 8 of the ECHR and his private and family life in the UK. In particular, he relied upon the impact deportation would have on his children’s education, including his youngest child M. In relation to M, the appellant relied upon Exception 2 in s. 117C(5) of the Nationality, Immigration and Asylum Act 2002 (“the NIA Act 2002”) and that his deportation would have an unduly harsh impact upon her.
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The appeal was heard by Judge N J Osborne on 11 December 2018. In a decision sent on 10 January 2019, Judge Osborne allowed the appellant’s appeal under Art 8. His determination is a lengthy, careful and detailed one. At para 6, the judge set out the appellant’s claim as follows:
“The Appellant’s Claim
6. The Appellant claims that:
(i) He has been lawfully resident in the UK since February 2002. He was granted indefinite leave to remain in 2007. His wife and three daughters joined him in the UK on 1 July 2008. The Appellant and all his family would have qualified for naturalisation as British citizens but have been unable to apply because of lack of funds. The family is now rooted and integrated in the UK. The two elder daughters [] aged 22 years and [] aged 18/19 years are both in university studying on undergraduate courses. The youngest child M attends [] in Swansea, has ambitions is to proceed to university in the UK. M remembers life in no other country. It would be unduly harsh for her to relocate to Rwanda. It would be unduly harsh for M to remain living in the UK without her father, the Appellant.
(ii) The Appellant from the outset admitted and accepted his guilt for the one isolated offence that he has committed. The offence was committed in highly unusual circumstances. The Appellant has been forgiven by the victim. The victim has been repaid again, in extraordinary circumstances. The Appellant has shown and continues to show a genuine remorse for his criminal offending. He represents a low risk of reoffending. His conduct since the offending has been exemplary. The Appellant still feels shame and embarrassment. The Appellant’s criminal offending has adversely affected his wife’s health and the family’s finances. Despite his criminal offending, the Appellant’s community think no less of him, continue to trust him, and continue to value him. The Appellant is an honest, humble and selfless man whose deportation would be a loss to the community. Deportation in this case would be disproportionate.”
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Then, the judge set out the applicable law in relation to deportation and Art 8, including paras 398 and 399 of the Immigration Rules (HC 395 as amended) and relevant provisions in Part 5 of the NIA Act 2002 at paras 11-29.
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Then, at paras 30-31 under the heading “The Best Interests of M” the judge said this:
“30. I have undertaken that balancing exercise in the context of Section 55 of the Borders, Citizenship and Immigration Act 2009 and my duty to consider the best interests and welfare of any relevant children in an appeal such as this.
[M], the third child of the Appellant and his wife is now aged 13 years. She is in year nine at [~]. She has lived in the UK for more than ten years. She has never lived anywhere other than in the UK during that ten year period. [The appellant’s wife] told me that if it were suggested to M that she had to leave Swansea in South Wales for a life in Rwanda she would consider it to be ‘child abuse’. She is fully integrated into her local community. She is a normal teenager who has over the last ten years developed close friendships. She enjoys school. She is ambitious to succeed and to proceed to university like her sisters.
31. This evidence on the part of [the appellant’s wife] had the distinct and realistic ring of truth about it. There is no suggestion that the Appellant and [the appellant’s wife] are anything other than appropriate, competent, loving parents. It is well-established that children are more likely to thrive if they are brought up in conditions of stability. For the most part that is precisely what these two parents have provided for all three of their children. The Appellant and his wife are a loving couple with a strong marriage. That marriage has withstood the Appellant’s absence from the family home in Rwanda whilst he adapted to a life in the UK and has also withstood the difficulties of the Appellant’s absence from the family home when he was in prison for a period of six months.
Six months is a long time in the life of a young child. However, ten years in the context of M’s life is virtually all the life that she can remember. M has lived in the UK for 80% or thereabouts of her 13 years. She can have little memory of life in Rwanda. All her education to date has been spent in the UK. She has an established home and an established way of life in Swansea. Whereas I am confident that if she followed her parents to any country in the world, they would do the best they could for her, the fact remains that at this stage in her development and education, having already spent ten years in the UK, it is not in the best interests of M to now relocate to any other country. The best interests of M are a primary consideration in this appeal. M’s best interests can be outweighed by other competing factors which also have to be assessed.”
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At paras 32-37, the judge dealt with, what he described in the heading of this section, as “The Unique Features of the Appellant’s Criminal Offending” as follows:
“32. In early 2012 [Mr K] was diagnosed with serious kidney failure. He was put on dialysis. He lives in Oxford. At that time the Appellant and his family lived in Reading. They were members of the Seventh Day Adventist Church which used to congregate in Oxford. They visited members of the Seventh Day Adventist Church community in Oxford. That is when the Appellant realised that K was in a critical condition. The Appellant felt the urge to assist [Mr K]. They were not related. They did not know each other until the Appellant became aware of [Mr K]’s plight. The Appellant thought carefully but relatively quickly about the matter and decided to donate his kidney to [Mr K]. On 10 April 2014 the transplant was conducted. After the Appellant donated his kidney, his health was adversely affected. He was unable to work. He and his family suffered financial difficulties.
[Mr K] benefited from the kidney transplant. His health improved. In September 2015 he began a postgraduate course at [~] and now has a Master of Arts degree in development and emergency practice. [Mr K] considers that the Appellant saved his life and wonders how many people would do what the Appellant did for him.
33. In or about March 2012, [Mr D], a well-established friend of the Appellant who was a pastor who attended the same church as the Appellant in Reading and who was applying for asylum in the UK, asked the Appellant if he could use the Appellant’s bank account to deposit his own money initially of £2,997.73 but later an additional £20,000 or thereabouts. The Appellant agreed and was pleased to help.
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