Upper Tribunal (Immigration and asylum chamber), 2019-10-10, HU/20155/2018

JurisdictionUK Non-devolved
Date10 October 2019
Published date02 January 2020
Hearing Date25 September 2019
StatusUnreported
CourtUpper Tribunal (Immigration and Asylum Chamber)
Appeal NumberHU/20155/2018

Appeal Number: HU/20155/2018


Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: HU/20155/2018



THE IMMIGRATION ACTS



Heard at Field House

Decision & Reasons Promulgated

On 25 September 2019

On 10 October 2019




Before


UPPER TRIBUNAL JUDGE McWILLIAM



Between


D M C

(ANONYMITY DIRECTION made)

Appellant

and


the Secretary of State for the Home Department

Respondent



Representation:

For the Appellant: Mr E Fripp, Counsel, instructed by Peer & Co (Birmingham)

For the Respondent: Mr E Tufan, Home Office Presenting Officer



DECISION AND REASONS

  1. The FTT made a direction for anonymity. I continue this in order to protect the identity of the Appellant’s children.

The background

  1. The Appellant is a citizen of Jamaica. His date of birth is 15 February 1977.

  2. On 5 April 2017 the Appellant received a custodial sentence of four years and eight months. He pleaded guilty to two offences of conspiring to supply Class A drugs, possessing criminal property (cash to the value of £24,216.08) and careless driving. The offences date back to 14 October 2015. When sentencing the Appellant, the judge said that he had “a considerable awareness of the scale of the operation in which you played a critical part. This was not street dealing so far as your part is concerned”. On 26 September 2018, following conviction, the Secretary of State made a deportation order pursuant to Section 5(1) of the 1971 Act. The Appellant is a foreign criminal as defined by Section 32(1) of the UK Borders Act 2007 (the 2007 Act”) and it follows from this pursuant to Section 32(5) the Secretary of State must make a deportation order.

  3. The Appellant appealed against deportation on the basis that it would breach his rights under Article 8 of the 1950 European Convention on Human Rights. His appeal was dismissed by the FTT. That decision was set aside by The Honourable Mrs Justice Thornton DBE sitting as a Judge of the Upper Tribunal (UT) and UT Judge McWilliam in their decision of 27 June 2019 ( “the error of law decision”).

  4. The Appellant came to the UK in 2002. He had been granted a visit visa. He made subsequent applications to remain. On 9 November 2009 he was granted discretionary leave to remain until 9 November 2012. On 5 December 2013 he was granted discretionary leave until 5 December 2016.

  5. The Appellant has five biological children. DC is his eldest child; his date of birth is 26 July 2002. DC is a Jamaican national with leave to remain here in the UK. He lives with the Appellant’s sister JK. DC‘s mother is ST and the evidence before the First-tier Tribunal was that he does not have contact with her. The Appellant’s second child is JC. His date of birth is 31 July 2003. JC lives with his mother, TM, in Harrow. The Appellant’s third child is AC. Her date of birth is 17 June 2006 and she lives in Gloucester with her mother, SB. The Appellant’s fourth child is NC. She was born on 24 January 2011. The Appellant’s fifth and youngest child is MC. His date of birth is 10 November 2009. MC and NC live with their mother, EC, the Appellant’s wife. EC has two older children, EB (date of birth 28 June 1999) and RB (date of birth 2 August 2002) who are described as the Appellant’s stepchildren.

  6. On 17 December 2014 the Appellant acted as a sponsor for DC in an application for DC to join him here in the UK and for him to be granted leave in line with the Appellant. The application was granted. On 2 December 2016 the Appellant made an application for ILR for himself and his son DC. DC‘s application was refused and the Appellant’s was put on hold as a result of his criminality. DC‘s appeal was successful. He was granted limited leave to remain until 23 November 2020.

The error of law decision

  1. The error of law decision reads as follows:-

20. We communicated a brief decision orally to the parties at the hearing. We found that the Judge materially erred in this case. He concluded that because DC is not a qualifying child and that therefore he could not meet Exception 2 that it followed that there could not be very compelling circumstances. We accept that this is an erroneous approach to the statutory regime for the reasons we will go on to explain. We also find that the decision that deportation would be unduly harsh in the context of DC is inadequately reasoned in any event. Furthermore, the assessment of very compelling circumstances was flawed for the reasons identified by the Secretary of State. We are not however persuaded that the Judge’s reliance on the decision of First-tier Tribunal Judge Frazer and the weight he attached to it discloses a discrete error of law. We reject in its entirety Mr Fripp’s argument as to a jurisdictional error in relation to the grant of permission to cross appeal the Secretary of State. As we understood Mr Fripp’s argument the error arises as a consequence of the permission Judge not properly considering the full extent of the delay by the Secretary of State in making his cross appeal. However, as Mr Fripp effectively conceded during oral submissions, paragraph 3 of the judge’s reasons consider the point and reach the view that the ‘explanation is not entirely satisfactory’. We consider Mr Fripp’s argument to be misconceived.

21. We accept Mr Fripp’s submission that in order to establish very compelling circumstances it is not a prerequisite that the Appellant satisfies either or both Exceptions 1 and 2. The judge erred because throughout his decision he finds that despite that there being ‘very compelling circumstances over and above undue harshness’ in respect of DC (see [24]) because the Appellant cannot fall into Exception 2 (see [26]) the public interest requires his deportation. This, in our view, is a misunderstanding of the law. In any event, it does not accord with his findings in respect of NC and MC. However, we reject Mr Fripp’s submission that in the light of this error the appeal should have been allowed under s117C (6). We find that the assessment of unduly harsh is flawed (as asserted by the Respondent) as is the judge’s application of the test of very compelling circumstances.

22. The Appellant could never meet exception 2 in respect of DC because he is not a qualifying child. However, whether DC‘s circumstances are capable of reaching the elevated threshold was a material consideration when assessing very compelling circumstances. The judge’s decision that the effect of deportation would be unduly harsh on DC is inadequately reasoned. It is not clear how he reached the conclusion with reference to the application of the correct test (set out in KO with reference to MK). In addition, the test applied by the judge in respect of s. 117C(6) is flawed because he did not take into account the public interest. He also did not make a holistic assessment but considered very compelling circumstances in respect of each child. We acknowledge that the Judge went on to consider proportionality outside of the Rules and in so doing took account of public interest considerations. However, this reveals another serious misunderstanding of the application of the statutory regime in deportation cases. In NA at para 35 the court of appeal said:

The Court of Appeal said in MF (Nigeria) that paras. 398 to 399A of the 2012 rules constituted a complete code. The same is true of the sections 117A to 117D of the 2002 Act, read in conjunction with paras. 398 to 399A of the 2014 rules. The scheme of the Act and the rules together provide the following structure for deciding whether a foreign criminal can resist deportation on Article 8 grounds.”

The Judge made serious errors when assessing Article 8 under the statutory regime. They are not merely structural errors. They are errors of substance. For the above reasons the decision of the First-tier Tribunal is so seriously flawed that it cannot be maintained. We set the decision to dismiss the Appellant’s appeal aside.

Remaking

23. We canvassed with the parties how the matter should proceed. We decided in accordance with the Practice Statement of the Senior President of Tribunals of 25 September 2012, that the matter should be remade by the Upper Tribunal.

24. There are findings within the decision that have not been challenged by either party. The judge found at [21] that the effect of deportation would be unduly harsh in relation to NC and MC. This has not been challenged by the Secretary of State and, in our view, there is no reason to go behind these findings. The weight to attach to the decision of Judge Frazer will be a matter for the UT when considering the impact of deportation on the DC (sic).

25. There is a finding in respect of s. 117C(4) at [23] of the judge’s decision against which there is no challenge. Mr Fripp conceded that the Appellant cannot meet the private life requirements at Section 117C (4). We understand this concession to mean that he cannot meet Section 117C(4)(a), (b) and (c).

26. We find that the conclusions reached by the judge at [22] in relation to the Appellant’s wife, EC, can be maintained. There is no reason advanced before us to interfere with those. However, we do not accept Mr Fripp’s submission that the finding is effectively a finding under s. 117C (5). If this...

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