Upper Tribunal (Immigration and asylum chamber), 2019-06-27, HU/04689/2018
| Jurisdiction | UK Non-devolved |
| Date | 27 June 2019 |
| Published date | 22 August 2019 |
| Hearing Date | 18 June 2019 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/04689/2018 |
Appeal Number: HU/04689/2018
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/04689/2018
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision & Reasons Promulgated |
|
On 18 June 2019 |
On 27 June 2019 |
|
|
|
Before
THE HONOURABLE MRS JUSTICE THORNTON DBE
(SITTING AS A JUDGE OF THE UPPER TRIBUNAL)
UPPER TRIBUNAL JUDGE McWILLIAM
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
SO
(Anonymity direction made)
Respondent
Representation:
For the Appellant/Secretary of State for the Home Department:
Mr N Bramble, Home Office Presenting Officer
For the Respondent: Mr P Lewis, Counsel instructed by Wilson Solicitors LLP
Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member 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.
DECISION AND REASONS
-
This is an appeal by the Secretary of State against the decision of the First-Tier Tribunal (“the FTT”), promulgated on 25 March 2019, allowing the appeal of SO against the decision of the Secretary of State to deport him and refuse his human rights claim, following a series of motoring offences. In this decision, for ease of reference, we shall refer to Respondent as the Appellant as he was known before the FTT.
-
We have made a direction to anonymise the Appellant in order to protect the identity of his brother F. He has a history of mental health problems.
-
The Appellant is a citizen of Ghana. His date of birth is 15 June 1985.
-
The Appellant arrived in the United Kingdom at the age of eleven and was granted limited leave to remain. He was granted indefinite leave to remain on 29 August 2012.
-
Between 04 July 2016 and 10 November 2017 the Appellant was convicted of a total of 9 driving offences including driving with excess alcohol, driving whilst disqualified and driving whilst uninsured. He was sentenced to a total period of imprisonment of 38 weeks.
-
Following his conviction for offences on 10 November 2017, on 30 November 2017, the Appellant was served with the Secretary of State’s decision to deport him pursuant to section 5(1) of the Immigration Act 1971 on the ground that his deportation was deemed to be conducive to the public good.
-
In January 2018, the Appellant made representations against deportation, which included a human rights claim. In a decision sent by letter of 06 February 2018, the Secretary of State rejected the representations and refused the human rights claim.
-
The Appellant’s appeal against the Secretary of State’s decision was heard before First Tier Tribunal Judge Norton Taylor who allowed the appeal.
The legal framework
-
The Appellant is a ‘foreign criminal’ as defined by Section 117D(2) of the Nationality, Immigration and Asylum Act 2002, having been found by the FTT Judge to fall into the category of ‘persistent offender’.
-
Part 5A of the Nationality, Immigration and Asylum Act 2002 sets out the considerations where a court or tribunal is required to determine whether a decision made under the Immigration Acts breaches a person’s right to respect for private and family life under Article 8 European Convention on Human Rights. In the case of foreign criminals Section 117C provides as follows:
“117C Article 8: additional considerations in cases involving foreign criminals
-
The deportation of foreign criminals is in the public interest.
-
The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
-
In the case of a foreign criminal (‘C’) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C’s deportation unless Exception 1 or Exception 2 applies.
-
Exception 1 applies where –
-
has been lawfully resident in the United Kingdom for most of C’s life,
-
C is socially and culturally integrated in the United Kingdom, and
-
there would be very significant obstacles to C’s integration into the country to which C is proposed to be deported.
-
Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh.
-
In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.
-
The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.”
-
Similarly; under paragraph 396 of the Immigration Rules, where a person is liable to deportation the presumption shall be that the public interest requires deportation.
-
Paragraph 398 of the Immigration Rules, insofar as the material applies to persistent offenders like the Appellant, provides:
“Where a person claims that their deportation would be contrary to the UK’s obligations under Article 8 of the Human rights Convention, and
…
(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 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 that 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.”
-
Paragraph 399 of the Rules applies if a person has a parental relationship with a child under the age of 18 years or relationship with a British or settled partner and where deportation would be unduly harsh. Paragraph 399A concerns private life factors.
-
The FTT and the Upper Tribunal will respect the high level of importance which the legislature attaches to the deportation of criminals (NA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 622, [2017] 1 W.L.R. 207, para 22).
-
The test in the Rules (and the corresponding test in section 117C of the Nationality, Immigration and Asylum Act 2002) is intended to “provide a structured basis for application of and compliance with Article 8, rather than to disapply it” (NA (Pakistan), above, para 26).
-
An Appellant who cannot meet the requirements under para 399 or 399A (Exception 1 or 2 of the 2002 Act) may nonetheless meet the “very compelling circumstances” test in paragraph 398 of the Immigration Rules (s.117 C (6) of the 2002 Act); but such cases must be especially strong and will therefore be rare. The commonplace incidents of family life, such as ageing parents in poor health or the natural love between parents and children, will not be sufficient (NA (Pakistan), above, paras 29 and 33).
-
The Secretary of State and any tribunal “must look at all the matters relied on collectively, in order to determine whether they are sufficiently compelling to outweigh the high public interest in deportation” (NA (Pakistan), above, para 32).
-
It follows that the question which fell to be determined by the FTT was whether the public interest in deportation was outweighed by very compelling circumstances over and above those described in paragraphs 399 and 399A and Exceptions 1 and 2 of the Act. That is undoubtedly a very high test.
The FTT decision
-
The Judge reached his conclusions having seen and heard the Appellant and his partner give evidence. There is no challenge to any of the FTT’s findings of fact. The judgement is detailed.
-
Having assessed the evidence, the Judge arrived at the following key conclusions:
“181. I conclude, by a narrow margin, that this is one of the small minority of cases in which there exists a combination of factors, the cumulative effect of these being that ‘very compelling circumstances over and above’ those described in paragraphs 399 and 399A of the Rules and Sections 117C(4) and (5) NIAA 2002 are disclosed, such that the very strong public interest in deporting the Appellant is outweighed.
…
183. The Appellant is only able to succeed because of the combined effect of the factors resting on his side of the balance sheet… In order of significance these are:
-
i. the Appellant’s relationship with F [his brother] and its surrounding circumstances;
ii. The Appellant’s relationship with KS [his partner] and her familial circumstances;
iii. The interconnected factors of the Appellant’s time away from Ghana and the time spent in the United Kingdom.
184 No single factor is of itself ‘very...
To continue reading
Request your trial