Upper Tribunal (Immigration and asylum chamber), 2020-02-25, HU/22903/2016

JurisdictionUK Non-devolved
Date25 February 2020
Published date20 March 2020
Hearing Date09 January 2020
StatusUnreported
CourtUpper Tribunal (Immigration and Asylum Chamber)
Appeal NumberHU/22903/2016

Appeal Number: HU/22903/2016


Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: HU/22903/2016



THE IMMIGRATION ACTS



Heard at Field House

Decision & Reasons Promulgated

On 9 January 2020

On 25 February 2020




Before


THE HON. MR JUSTICE LANE, PRESIDENT

UPPER TRIBUNAL JUDGE O’CONNOR



Between


[W P W]

Appellant

and


THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent



Representation:

For the Appellant: Mrs S Naik QC and Mr A Bandegani instructed by Duncan Lewis & Co Solicitors

For the Respondent: Mr S Kovats QC, instructed by the Government Legal Department



DECISION AND REASONS


Direction under rule 14(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008


The disclosure or publication of any matter likely to lead members of the public to identify RX, J or RN is prohibited. This order applies to the appellant, respondent and all other persons. Failure to comply with this order could lead to contempt of court proceedings.

INTRODUCTION

  1. This decision relates to an appeal against a decision of the First-tier Tribunal (“the FtT”) promulgated on 14 November 2018, dismissing the appellant’s appeal against the Secretary of State of the Home Department’s (“the SSHD”) decision of 30 August 2016 refusing the appellant’s human rights claim. On the same occasion, the SSHD made a decision refusing to revoke a deportation order in the appellant’s name, signed on 23 February 2015.

  2. On the 1 April 2019, the Upper Tribunal set aside the FtT’s decision (“the error of law decision”) and directed that the re-making of the decision in the appeal should be undertaken by the Upper Tribunal

  3. The respondent now submits that the Upper Tribunal should re-visit, and depart from, its error of law decision of 1 April 2019 and conclude that the FtT did not err in law, the consequence being that the FtT’s decision of 14 November 2018 would stand. We consider this submission in Part 1 of this decision. In Part 2 of this decision we re-make the decision in the appeal.

FACTUAL BACKGROUND – AN OVERVIEW

  1. The appellant was born on 3 August 1978 and is a national of Jamaica.

  2. His eldest son, RX, was born in the United Kingdom on 1 September 1997 to SY.

  3. On 13 May 2000, the appellant was refused leave to enter the United Kingdom as a visitor but was granted temporary admission until the following day. He failed to report as required and remained in the United Kingdom. On 16 December 2000, the appellant and SY married in the United Kingdom. They separated in 2003.

  4. In 2004, the appellant began a relationship with JH. J was born of that relationship in May 2008. In 2006, the appellant made an application to the SSHD for indefinite leave to remain as the father of RX, but that application was refused by the SSHD in November 2009. An appeal against the decision was dismissed by the FtT on 27 April 2010 and, thereafter, by the Upper Tribunal on 28 September 2010.

  5. On 4 July 2013, the SSHD granted the appellant limited leave to remain in the United Kingdom for 30 months, as a consequence of his relationship with J (it being concluded that he had a parental relationship with J and that it was not reasonable to expect J to leave the United Kingdom).

  6. On 13 February 2014, the appellant was convicted of supplying Class A controlled drugs and was sentenced to forty months’ imprisonment. As a consequence, on 24 May 2014 the SSHD served notice on the appellant of his liability to deportation. In response, on 19 June 2014 the appellant raised a human rights claim, relying upon his relationship with his children and JH. On 23 February 2015, the SSHD made a decision to deport the appellant and also refused his human rights claim. The decision notice concluded by certifying the appellant’s human rights claim pursuant to section 94B of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”).

  7. Challenge was brought to the section 94B certification by way of judicial review proceedings issued on 24 March 2015 (JR/3490/2015). Within the confines of the judicial review proceedings further evidence was put forward in support of the appellant’s Article 8 ECHR claim. The SSHD made a supplementary decision on 30 April 2015, refusing to treat the further evidence as a fresh claim pursuant to paragraph 353 of the Immigration Rules, refusing to revoke the deportation order and maintaining the section 94B certification. Permission to bring judicial review proceedings challenging the decisions of 23 February and 30 April 2015 was refused on the papers by Upper Tribunal Judge Perkins on 18 August 2015. Upon renewal, the application for judicial review was stayed to await the Court of Appeal’s decision in Kiarie and Byndloss v SSHD [2015] EWCA Civ 1020. The matter thereafter came before Upper Tribunal Judge Blum on 22 June 2016, who also refused permission to bring judicial review proceedings.

  8. In August 2016, the appellant made further submissions to the SSHD asserting, inter alia, that his relationship with JH had broken down and that Social Services had initiated a child protection case in relation to both J and the appellant’s then unborn child (RN). On 30 August 2016, the SSHD made a decision refusing to revoke the appellant’s deportation order, as well as refusing the appellant’s human’s human rights claim. The SSHD accepted, however, that the further submissions amounted to a fresh human rights claim pursuant to paragraph 353 of the Immigration Rules. Once again, the appellant’s claim was certified pursuant to section 94B of the 2002 Act.

  9. The SSHD gave notice of intention to remove the appellant to Jamaica on 7 September 2016. In response, the appellant lodged a second application for judicial review, this time challenging the decision to remove him (JR/9647/2016). By way of an order dated 5 September 2016, Upper Tribunal Judge McGeachy refused to stay the appellant’s removal. The appellant was removed from the UK to Jamaica on 7 September 2016.

  10. On 4 October 2016, the appellant submitted an appeal to the First-tier Tribunal with the assistance of a pro-bono organisation., challenging the decision of 30 August 2016 to refuse his human rights claim. He, subsequently, instructed solicitors in the UK and, on 22 February 2018, the Legal Aid Agency granted prior authority to instruct a forensic psychiatric expert, an independent social worker and an independent probation officer.

  11. In the meantime, in November 2016 the appellant’s son RN was born to JH.

  12. On 29 January 2018, the appellant lodged a further application for judicial review (JR/666/2018), challenging the SSHD’s decision to maintain the section 94B certification and the FtT’s decision not to stay the appeal proceedings. The return of the appellant to the UK was sought by way of relief. In a decision of 31 March 2018 (reported as [2018] UKUT 165), the Upper Tribunal (constituted of the instant panel): (i) refused permission to bring judicial review proceedings challenging the FtT’s decision to refuse to stay the appeal proceedings; and, (ii) stayed the proceedings insofar as challenge was brought to maintenance of the section 94B certification and refusal by the SSHD to return the appellant to the United Kingdom prior to the disposal of his appeal.

  13. The appeal before the FtT was heard substantively by the President of the FtT and Resident Judge Campbell on 25 and 26 June 2018 and dismissed in a decision promulgated on 14 November 2018 (the FtT’s decision”). On 13 December 2018, permission to appeal to the Upper Tribunal against the decision of the 14 November 2018 was granted by the President of the FtT.

  14. As identified above, in a decision promulgated on 1 April 2019, the Upper Tribunal set aside the decision of the FtT and directed that the re-making of the decision in the appeal should be undertaken by the Upper Tribunal. On 9 May 2019, the Upper Tribunal ordered that:

Pursuant to s. 25 of the Tribunals, Courts and Enforcement Act 2007, the Respondent shall revoke the s. 94B certificate and take all necessary steps to facilitate and fund the Appellant’s return from Jamaica to the United Kingdom as soon as practicable for both parties (without prejudice to the Respondent’s ability to issue a fresh certificate per s. 94B if so advised).”

  1. The appellant entered the United Kingdom on 18 June 2019 having been “granted immigration bail”. The deportation order against the appellant remains in force.

PART 1: SSHD’S REQUEST THAT THE UPPER TRIBUNAL DEPART FROM THE ERROR OF LAW DECISION

  1. As we have already identified, the SSHD now makes a request that the Upper Tribunal re-visit its decision of 1 April 2019 setting aside the FtT’s decision and, contrary to its earlier finding, conclude that the FtT did not err in law – the consequence of this being that the FtT’s decision would stand.

Issue of Jurisdiction

  1. It is not in dispute that in circumstances where the Upper Tribunal has not finally disposed of an appeal, it has jurisdiction to depart from, or vary,...

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