Upper Tribunal (Immigration and asylum chamber), 2020-01-29, [2020] UKUT 45 (IAC) (Patel (British citizen child – deportation))

CourtUpper Tribunal (Immigration and Asylum Chamber)
JudgeThe Hon. Mr Justice Lane, President, Upper Tribunal Judge Rimington, Dr H H Storey Judge of the Upper Tribunal
StatusReported
Publication Date18 February 2020
Date29 January 2020
Appeal Number[2020] UKUT 45 (IAC)
SubjectBritish citizen child – deportation



Upper Tribunal

(Immigration and Asylum Chamber)


Patel (British citizen child – deportation) [2020] UKUT 00045 (IAC)


THE IMMIGRATION ACTS


Heard at Field House

Decision & Reasons Promulgated

On 30 October 2019



…………………………………



Before


THE HON. MR JUSTICE LANE, PRESIDENT

UPPER TRIBUNAL JUDGE RIMINGTON

DR H H STOREY

JUDGE OF THE UPPER TRIBUNAL


Between


Hirenkumar Bhikhabhai Patel

(ANONYMITY DIRECTION NOT MADE)

Appellant


and


THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent


Representation:


For the Appellant: Ms S Akinbolu, Counsel, instructed by Montecristo LLP

For the Respondent: Mr T Lindsay, Home Office Presenting Officer


(1) In its application to a “qualifying child” within the meaning of section 117D of the Nationality, Immigration and Asylum Act 2002, section 117C(5) imposes the same two requirements as are specified in paragraph 399(a)(ii) of the Immigration Rules; namely, that it would be unduly harsh for the child to leave the United Kingdom and for the child to remain.


(2) In both section 117C(5) and paragraph 399(a)(ii), what judicial decision-makers are being required to assess is a hypothetical question – whether going or staying ‘would’ be unduly harsh. They are not being asked to undertake a predictive factual analysis as to whether such a child would in fact go or stay.


(3) Nationality (in the form of British citizenship) is a relevant factor when assessing whether the ‘unduly harsh’ requirements of section 117C(5) are met. However, it is not necessarily a weighty factor; all depends on the facts.


(4) The possession of British citizenship by a child with whom a person (P) has a genuine and subsisting parental relationship does not mean that P is exempted from the ‘unduly harsh’ requirements. Even though the child may be British, it has to be unduly harsh both for him or her to leave with P or to stay without P; not just harsh. Thus, some substantial interference with the rights and expectations that come with being British is possible, without the position becoming one of undue harshness to the child.



DECISION AND REASONS


1. This is a decision to whose writing each member of the panel has contributed.


2. A citizen of India aged 37, the appellant has permission to challenge the decision of Judge Welsh of the First-tier Tribunal sent on 30 April 2019 dismissing his appeal against the decisions made by the respondent on 4 December 2018 to make a deportation order and on 6 December 2018 to refuse his human rights claim.


3. The appellant came to the UK in 2008 with entry clearance as a spouse. In November 2013 he was granted indefinite leave to remain. He is a foreign criminal by virtue of the fact that on 26 January 2016 he was convicted of three counts of conspiring to conceal/disguise/convert/transfer/remove criminal property and one count of proceeds of crime money laundering – failure to disclose in regulated sector. On 20 February 2017 he was sentenced to three years and six months’ imprisonment. In his sentencing remarks, the judge noted that: “[m]oney laundering is integral to the serious criminality: in this case drug dealing.” The appellant’s wife, who also originates from India, came to the UK in 2006 as a student. She and the appellant have a son born in April 2013. On 6 January 2016 she and her son were naturalised as British citizens. As an infant the child suffered from macrocephaly and thoracolumbar scoliosis.


4. The judge found the appellant and his wife to be credible and reliable witnesses.


5. The judge noted the legal requirements applicable to the appellant’s case as being those set out in section 117C of the Nationality, Immigration and Asylum Act 2002 and the broadly corresponding provisions of the Immigration Rules at paragraphs 398, 399 and 399A.


6. Section 117C, headed, “Article 8: additional considerations in cases involving foreign criminals”, provides:


(1) The deportation of foreign criminals is in the public interest.

(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.

(3) 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.

(4) Exception 1 applies where—

(a) C has been lawfully resident in the United Kingdom for most of C's life,

(b) C is socially and culturally integrated in the United Kingdom, and

(c) there would be very significant obstacles to C's integration into the country to which C is proposed to be deported.

(5) 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.

(6) 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.

(7) 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.


7. The relevant immigration rules are paragraphs 398, 399 and 399A.


8. Paragraph 398 is as follows:


Where a person claims that their deportation would be contrary to the UK's obligations under Article 8 of the Human Rights Convention, and

(a) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years;

(b) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months; or

(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, their offending has caused serious harm or 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 it 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 and 399A.”

9. Paragraph 399 of the Rules applies where paragraph 398 (b) or (c) is engaged, if -

(a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and

(i) the child is a British Citizen; or

(ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case

(a) it would be unduly harsh for the child to live in the country to which the person is to be deported; and

(b) it would be unduly harsh for the child to remain in the UK without the person who is to be deported; or

(b) the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen or settled in the UK, and

(i) the relationship was formed at a time when the person (deportee) was in the UK lawfully and their immigration status was not precarious; and

(ii) it would be unduly harsh for that partner to live in the country to which the person is to be deported, because of compelling circumstances over and above those described in paragraph EX.2. of Appendix FM; and

(iii) it would be unduly harsh for that partner to remain in the UK without the person who is to be deported.”

10. Paragraph 399A provides:

"This paragraph applies where paragraph 398(b) or (c) applies if –

(a) the person has been lawfully resident in the UK for most of his life; and

(b) he is socially and culturally integrated in the UK; and

(c) there would be very significant obstacles to his integration into the country to which it is proposed he is deported."


11. With reference to section 117C(3)-(5), the judge noted that, as the appellant had not lawfully been in the UK for most of his life, he could not meet Exception 1. The judge then turned to Exception 2, noting that the appellant’s representative before her (Mr Malik) had conceded that if the requirements of Exception 2 are not met, the appeal must fail...

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