Upper Tribunal (Immigration and asylum chamber), 2019-08-08, PA/05150/2018
| Jurisdiction | UK Non-devolved |
| Date | 08 August 2019 |
| Published date | 24 October 2019 |
| Hearing Date | 08 July 2019 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | PA/05150/2018 |
Appeal Number: PA/05150/2018
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/05150/2018
THE IMMIGRATION ACTS
|
Heard at Field House |
Determination Promulgated |
|
On Monday 8 July 2019 |
On Thursday 8 August 2019 |
|
|
|
Before
UPPER TRIBUNAL JUDGE SMITH
Between
J M S M
(ANONYMITY DIRECTION MADE)
Appellant
And
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
Although an anonymity direction was not made by the First-tier Tribunal Judge and the appeal no longer involves a protection claim, I continue the anonymity direction because the case involves minor children. Unless and until a tribunal or court directs otherwise, the Appellant, J M S M, 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.
Representation:
For the Appellant: Mr D Bazini, Counsel instructed by JJ Law Chambers
For the Respondent: Mr E Tufan, Senior Home Office Presenting Officer
DECISION AND REASONS
BACKGROUND
Procedural Background
-
By a decision promulgated on 15 February 2019 (“the Decision”), I (sitting with Lord Beckett as an Upper Tribunal Judge) found an error of law in the decision of First-tier Tribunal Judge S J Steer allowing the Appellant’s appeal. We therefore set aside Judge Steer’s decision and gave directions for the re-making of her decision. The Decision is appended to this decision for ease of reference.
-
By a decision promulgated on 4 April 2019, I adjourned a resumed hearing in order to permit the Appellant to obtain expert evidence in relation to the position of his children. That was to have been served by 14 June 2019. Under cover of a letter dated 4 July 2019, the Appellant’s solicitor filed and served a psychological report from Dr Christopher Wood dated 3 July 2019. Although that was filed and served out of time, I admitted the evidence without objection from Mr Tufan.
-
In the Decision, we expressly preserved that part of the decision which dealt with the Appellant’s appeal on protection grounds and Judge Steer’s conclusion that the appeal should be dismissed on this ground ([3] to [40] of that decision). The Respondent was therefore entitled to revoke the Appellant’s refugee status.
-
The appeal is therefore now confined to human rights grounds, in particular under Article 8 ECHR. When appealing Judge Steer’s decision, the Secretary of State did not take issue with the Judge’s factual findings. The appeal was on the basis that the Judge failed properly to apply the law to those facts. Accordingly, I also preserve [45] and [48] to [54] of Judge Steer’s decision which sets out the evidence which she heard and the findings at [60] to [64] of the decision. I have taken account of those parts of the decision when carrying out my assessment below.
-
However, given our earlier conclusions that Judge Steer failed to give appropriate weight to the public interest, it is necessary for me to conduct a fresh assessment of the extent of and interference with the private and family lives of the Appellant and his family and to balance that against the public interest. I will also need to supplement what is there said as there was additional evidence before me, both documentary and oral, for that reason, I do not preserve any other part of Judge Steer’s decision.
Factual Background
-
The Appellant is a national of Colombia. He came to the UK in 1997 to join his mother who had been granted refugee status. On 8 May 2000, he was granted indefinite leave to remain in line with his mother. On 10 May 2011, the Appellant was convicted of offences relating to the supply of Class A drugs and sentenced to nine years’ imprisonment. A deportation order was signed against him along with the decision under appeal on 20 March 2017 following various representations about why he should not be deported, and steps taken by the Respondent to cease the Appellant’s refugee status.
-
The Appellant has been in a relationship with a British citizen since 2004 and they have four children, [N] born September 2004, [S] born February 2006, [R] born August 2009 and [SC] born June 2011. Those children are therefore aged fourteen, thirteen, nine and eight. The Appellant maintains a relationship with his partner and children although he does not live with them. I was told by his partner, [JS], that the reason is because she is living with her parents and brother, sharing one room with the children and it would be too overcrowded if the Appellant were to live with them. I heard evidence, however, that the Appellant sees the children daily. I will come on to the detail of his relationship with his children below.
-
The Appellant has only been convicted of one offence. However, that offence was a very serious one as is evident from the sentence passed. It concerned involvement in the importation of five kilogrammes of cocaine. The Appellant and his co-accused were involved in the delivery of a parcel containing the drugs which were addressed to the property of his co-accused. The Appellant stood to obtain £700 in payment and said that his financial circumstances at that time were the reason he became involved. He has a history of some use of drugs (mainly cannabis) but the OASys report dated July 2015 suggests that he no longer takes any substances. The Appellant pleaded guilty to the offence. I will deal with the offence in more detail below. He has an earlier caution in 2003 for possession of cannabis.
-
The Appellant was released from prison in May 2015 but remains on licence to November 2019. He told me that, due to a mix up, he was not tagged when initially released but after two years, he was tagged and remains with a tag and subject to conditions which make it very difficult for him to carry out his work and involve himself in family occasions. He has not reoffended. The OASys report indicates a low risk of reoffending. Again, I will deal with the detail of that evidence below.
-
The Appellant was served with a notice of liability to deportation on 1 September 2011. The decision notifying the Appellant of the deportation order against him was served on 26 August 2015. He made representations leading to the decision dated 15 March 2017 which is under appeal, refusing the Appellant’s protection and human rights claim. The Respondent also certified under section 72 Nationality, Immigration and Asylum Act 2002 that the Refugee Convention did not prevent the Appellant’s removal because he had been convicted of a serious crime and constituted a danger to the community. At [25] of Judge Steer’s decision, she concluded that the Appellant had rebutted the presumption in that regard and refused to uphold the section 72 certificate. I have preserved that finding.
LEGAL FRAMEWORK
-
The Appellant was sentenced to a term of imprisonment of four years or more. As such, whether under the Immigration Rules (“the Rules”) or in accordance with Section 117C Nationality, Immigration and Asylum Act 2002 (“Section 117C”) the test is whether there are very compelling circumstances over and above the exceptions set out in the Rules and Section 117C. The relevant parts of the Rules and Section 117C are set out at [14] of the Decision and I do not need to set them out again.
-
In summary, therefore, in order to succeed, the Appellant needs to show that the factors in his case amount to very compelling circumstances over and above the exceptions in Section 117C and the Rules which would, if his sentence had been lower, permit him to succeed based on either or both of his private and family life.
-
However, it is also relevant to that question whether the Appellant could meet either of those exceptions if they did apply. The way in which the test operates was explained by the Court of Appeal in NA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 662 (“NA (Pakistan)”) as follows:
“[29] In our view, the reasoning of the Court of Appeal in JZ (Zambia) applies to those provisions. The phrase used in section 117C(6), in para. 398 of the 2014 rules and which we have held is to be read into section 117C(3) does not mean that a foreign criminal facing deportation is altogether disentitled from seeking to rely on matters falling within the scope of the circumstances described in Exceptions 1 and 2 when seeking to contend that "there are very compelling circumstances, over and above those described in Exceptions 1 and 2". As we have indicated above, a foreign criminal is entitled to rely upon such matters, but he would need to be able to point to features of his case of a kind mentioned in Exceptions 1 and 2 (and in paras. 399 or 399A of the 2014 rules), or features falling outside the circumstances described in those Exceptions and those paragraphs, which made his claim based on Article 8 especially strong.
[30] In the case of a serious offender who could point to circumstances in his own case which could be said to...
To continue reading
Request your trial