Upper Tribunal (Immigration and asylum chamber), 2019-12-02, PA/07974/2018
| Jurisdiction | UK Non-devolved |
| Date | 02 December 2019 |
| Published date | 17 February 2020 |
| Hearing Date | 25 September 2019 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | PA/07974/2018 |
Appeal Number: PA/07974/2018
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/07974/2018
THE IMMIGRATION ACTS
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Heard at North Shields |
Decision & Reasons Promulgated |
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On the 25th September 2019 |
On 2nd December 2019 |
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Before
UPPER TRIBUNAL JUDGE REEDS
Between
D J
(ANONYMITY DIRECTION made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Adewoye, Solicitor Advocate
For the Respondent: Ms Petterson, Senior Presenting Officer
DECISION AND REASONS
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The appellant appeals, with permission, against the decision of the First-tier Tribunal (hereinafter referred to as the “FtTJ”) promulgated on the 15th January 2019, in which the Tribunal dismissed the appeal of DJ against the decision of the Secretary of State to refuse his protection and his human rights claim and in the context of the respondent having made a deportation order against him.
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I make a direction regarding anonymity under Rule 14 of the Tribunal Procedure (Upper Tribunal Rules) Rules 2008 as this appeal involves the interest of minor children. 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 members 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.
The Background:
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There is a long background history which it is necessary to summarise to consider the legal issues that are identified in this appeal.
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The appellant is a citizen of Jamaica. He entered the United Kingdom on 19 March 2002 and was granted leave to enter as a student until 30 June 2003. That leave was further extended until 28 June 2004.
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On 28 May 2004 he married a British citizen, KB, and on 16 June 2004, the appellant applied for leave to remain as a spouse and was granted leave until 22 June 2006.
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In December 2004 he was convicted of having an article with a blade which was sharply pointed in a public place to plead guilty was given a conditional discharge for 12 months.
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In May 2005 he was convicted of the Magistrate’s Court for a number of offences relating to driving was insured for which he received a community punishment order. In November 2005 he was convicted at the Magistrate’s Court of criminal damage and was conditionally discharged for six months.
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On 31 May 2006, the appellant made an application for further leave to remain as a spouse but that was subsequently refused.
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In September 2006 he was convicted of resisting or obstructing a constable for which he received a conditional discharge of 18 months.
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On 6 October 2006 the appellant was convicted at the Magistrate’s Court on six counts of supplying class A drugs and was committed for sentence at the Crown Court. On 13 November 2006 he was sentenced to a term of four years imprisonment concurrent on each of the eight counts.
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On 21 November 2007, the Secretary of State made a decision to make a deportation order under section 5(1) of the immigration act 1971 on the basis of his deportation was conducive to the public good. It is also recorded that his application for indefinite leave as a spouse was refused on the 21 November 2007 in light of his conviction and paragraph 322 (5) of the Immigration Rules.
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The appellant appealed that, and following a hearing on 23 January 2008, the Tribunal dismissed the appellant’s appeal.
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Following that, the appellant sought and was granted reconsideration of that decision which was set aside by Senior Immigration Judge Perkins on 5 June 2008 on the basis that the AIT had materially erred in law in reaching its decision.
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In a decision promulgated on 19 November 2008, the AIT substituted its decision dismissing the appeal.
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Further litigation followed and on the 21 July 2009, the Court of Appeal allowed the appeal by consent and remitted it for rehearing to the AIT.
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The appeal then came before Senior Immigration Judge Grubb on 24 November 2010. In a decision promulgated on 30 December 2010, he allowed the appeal. During the appeal he heard evidence from the appellant, his sister and her husband. The judge recorded that the appellant relied exclusively upon Article 8 of the ECHR based on his family life with his wife K and the two children, K1 child of the family) and A. The appellant’s wife suffered from mental illness and had been at times detained under the Mental Health Act. The judge’s assessment of the evidence was set out at paragraphs [48]-[79]. The judge found that there was a close family life between the appellant, his stepson (age 9) and his daughter and that the appellant had taken full parental responsibility and care for both children when his wife had been hospitalised both prior to his imprisonment and since his release. Whilst there was a relationship between the appellant’s cousins, it was not a relationship that engaged the aspect of “family life” but it was part of the children’s private life.
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As to the circumstances of the appellant, the judge found that the appellant had been in the UK since 2002. He had been married to British citizen since 2004 and had a stepson age 9 and a daughter almost 6. They are British citizens.
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The judge set out the evidence relating to the appellant’s wife and him mental health and at [70] recorded the evidence that she had been assisted with her condition with the support of her husband and that at the date of the hearing she had become hospitalised. The appellant had been caring for the children at the home of his sister. The judge reached the conclusion at [73] the effect of the offence deportation would be to split up the family and that it would not be realistic to suggest that he could maintain family relationships with the children in the UK.
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As to the offences themselves, the judge made reference to the sentencing remarks in which the offences were described as “extremely serious” and acknowledging the appellant’s explanation that he supplied the drugs in order to pay off debts to illegal money lenders, as the judge pointed out, the appellant continued to supply the drugs as a source of income for himself and his family even the debt had come to an end. It was noted that the offending was not a “one-off” but was “over a period of time” between March and June (at [55]). As to the risk of future reoffending, the risk of reconviction was “medium”. Whilst in prison he had two disciplinary adjudications. The judge found that he remained a medium risk of reconviction at a low risk to the public (at [57)).
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In his assessment of proportionality, the judge weighed in the balance the due weight given to the public interest in his deportation based on the appellants offending history and that he remained a “medium risk of offending and a low risk of causing harm” but found that it was not reasonable at present for the family to relocate to Jamaica and that the interests of the appellant’s wife and children were that they should remain as a family. The appellant’s presence in the UK was an integral part of the support required by his children and his wife to in respect of her mental health problems and did not find it was reasonable to expect the appellant’s family to leave with the appellant and therefore he was satisfied that the appellant’s deportation would not be a proportionate interference with his and his family rights to respect for “private and family life” under article 8.
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The judge therefore allowed the appeal. The Secretary of State did not seek permission to appeal that decision.
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Following this, on 7 September 2011, the appellant was granted discretionary leave in the UK for six months until 6 March 2012.
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It is recorded that on the 16th February 2012 the appellant made an asylum claim in the UK following his visit to Jamaica in December 2005. It was asserted that he was in fear of return to Jamaica.
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On 23 April 2012 he applied for extension of stay in the UK, but this was refused. The reasons given was that it was on the wrong form and no fee was received.
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On 8 May 2012 the appellant applied for further discretionary leave to remain in the UK. He provided evidence of his family situation in support of the application filed with a covering letter of the 4 May 2012.
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On 4 February 2013 at Crown Court, he was convicted of two counts of common assault and battery and was given a suspended sentence of four months imprisonment 24 months wholly suspended, a 12-month supervision order and a 140 hours unpaid work requirements.
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On 30 May 2013, the appellant was granted discretionary leave in the UK until 30 November 2013.
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On 21 January 2014, the appellant applied for further discretionary leave to remain in the UK. He provided evidence of his family situation in support of the application (covering letter dated 8 November 2013).
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On 13 March 2014, the appellant was granted discretionary leave in the UK until 13th September 2014.
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On 7 August 2014 the appellant submitted an application for further...
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