Upper Tribunal (Immigration and asylum chamber), 2020-03-16, DA/00400/2018
| Jurisdiction | UK Non-devolved |
| Date | 16 March 2020 |
| Published date | 30 March 2020 |
| Hearing Date | 03 February 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | DA/00400/2018 |
Appeal Number: DA/00400/2018
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00400/2018
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 3rd February 2020 |
On 16 March 2020 |
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Before
UPPER TRIBUNAL JUDGE RIMINGTON
UPPER TRIBUNAL JUDGE BLUNDELL
Between
T A M
(Anonymity Direction Made)
Appellant
and
Secretary of State for the Home Department
Respondent
Representation:
For the Appellant: Mr T Nyawanza instructed by Axiom Stone Solicitors
For the Respondent: Ms S Cunha, Home Office Presenting Officer
DECISION AND REASONS
Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
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 any member 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. This direction is made because there are minors involved.
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The appellant is a national of Jamaica born on 1st March 1980 and she appeals against the decision to deport her under the Immigration (European Economic Area) Regulations 2016 (‘the 2016 EEA Regulations’).
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The First-tier Tribunal dismissed her appeal, on 4th February 2019 under the 2016 Regulations but owing to a material error of law, in particular the failure to assess adequately the best interests of the children under section 55 of the Borders Citizenship and Immigration Act 2009 and a failure to have regard to Ayinde and Thinjom (Carers -Reg.15A – Zambrano [2015] UKUT 00560 (which held the best interests of the children were not necessarily adequately protected by them being taken into care) that determination was set aside. There were no findings preserved.
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The key issues in the resumed hearing were whether the appellant presented a genuine, present and sufficiently serious threat to the fundamental interests of society and thus the decision to deport was taken on the grounds of public policy, public security or public health, in accordance with the 2016 Regulations and if so, secondly whether the decision to deport the appellant would force her children to leave the UK to accompany their mother and would be in breach of their fundamental rights as citizens of the EU and the decision would be proportionate in all the circumstances.
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The Secretary of State had signed a Deportation Order on 6th June 2018 following the appellant’s conviction and sentence on 23rd January 2014 at Birmingham Crown Court, for conspiracy to supply a Class A controlled drug, namely heroin, and conspiracy to supply a Class A controlled drug, namely Crack Cocaine. The appellant received a prison sentence of 8 ½ years.
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The applicant had entered the UK as a visitor (although the precise date was unknown) having applied for entry clearance in Kingston, Jamaica in 2002. After arrival her leave was extended as a student until 30th September 2007. She was then encountered on 19th December 2007 and served with papers as an overstayer. On 23rd November 2009, however, she was granted 3 years discretionary leave until 22nd November 2012, owing to the length of her residency and family life in the UK. Her application in 2012 for leave to remain on the basis of long residency (14 years) was placed on hold pending her prosecution which led to her conviction referenced above. She was served with notice of her liability to deportation on 16th May 2014 and submissions invited. On 20th July 2016 she was served with a notice of a decision to make a deportation order under the UK Border Act 2007. In the light of her response and implied asylum claim, the appellant was sent a Preliminary Information Form ICD 4940 and ASL 4941 (asylum support application), to which she failed to respond. On 13th December 2017 she was served with a notice of liability to deportation under the 2016 EEA regulations because of her claim that she had a British child. The Deportation Order was then signed.
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It was acknowledged by the Secretary of State on 21st June 2018 that she had a derivative right of residence under regulation 16 of the EEA Regulations because of her relationship with her two children born in the United Kingdom on 8th March 2006 (TRLN) and 26th September 2009 (RPWM). Both children were said to be British citizens and she the primary carer. It was not accepted that the appellant had a permanent right of residence owing to her failure to have lived in the UK in accordance with the 2016 Regulations, her immigration history detailed above and that she had been in prison (see Regulation 3(3) of the 2016 Regulations). She was thus entitled to the lowest level of protection under the 2016 Regulations. Nonetheless, the Secretary of State considered that the appellant represented a sufficiently serious threat to the fundamental interests of the United Kingdom and that her deportation would be proportionate.
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The appellant challenged her deportation under regulation 36 of the 2016 EEA Regulations and on human rights grounds under Section 82 of the Nationality, Immigration and Asylum Act 2002.
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With regard the appellant’s criminality, the sentencing judge found that the conspiracy had lasted 4 months, there were 9 test purchases by police officers and the appellant always answered the phone, which was used 100,000 times with an average of 22 dealings a day. The appellant had denied the offences, said nothing at her trial until the day of her sentence and suggested to the Probation Officer she was entirely innocent. The sentencing judge found she had sole control of the phone, was obtaining the supply and was involved in the packaging. The appellant set up the supply business using her occupation as carer as a sort of disguise, was directing or organising, buying and selling on a commercial scale and must have had substantial links to others further up the chain. It was also identified that the appellant had induced the involvement of, and exploited, a vulnerable co-defendant.
Discussion
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The appeal was filed under both Regulation 36 of the 2016 Regulations and under Section 82 of the Nationality, Immigration and Asylum Act 2002. It is necessary to consider the matter under the 2016 Regulations and where relevant, with reference to Article 8, the Secretary of State’s position is set out in the Immigration Rules and Section 117C of the Nationality, Immigration and Asylum Act 2002. In both cases we are required to make a current assessment of the best interests of the children, Section 55 of the Borders Citizenship and Immigration Act 2009, ZH (Tanzania) [2011] UKSC 4.
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Zambrano [2011] EUECJ C-34/09 established that member states cannot refuse a person the right to reside and work in the host member state, where that person is the primary carer of a Union citizen who is residing in their member state of nationality and refusal of a right of residence to that primary carer would deprive the Union citizen of the substance of their European citizenship rights by forcing them to leave the EEA. The decision in Zambrano was given effect in domestic law by amending the Immigration (European Economic Area) Regulations 2006 and in the 2016 Regulations by Regulation 16(5) (previously under the Immigration (European Economic Area) Regulations 2006, 15A(4A)). However, Regulation 16(12) (previously 15A (9) provides that a person who is otherwise entitled to a derivative right to reside shall not be so entitled where the Secretary of State has made, as here, a decision under Regulation 23(6)(b).
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Regulation 23 of the 2016 EEA regulations sets out the provisions with regard the exclusion from the United Kingdom for those with a derivative right of residence (by virtue of regulation 28) as follows:
Exclusion and removal from the United Kingdom
23.—
…
(6) Subject to paragraphs (7) and (8), an EEA national who has entered the United Kingdom or the family member of such a national who has entered the United Kingdom may be removed if—
(a)that person does not have or ceases to have a right to reside under these Regulations;
(b)the Secretary of State has decided that the person’s removal is justified on grounds of public policy, public security or public health in accordance with regulation 27; or
(c)the Secretary of State has decided that the person’s removal is justified on grounds of misuse of rights under regulation 26(3).
(7) A person must not be removed under paragraph (6)—
(a)as the automatic consequence of having recourse to the social assistance system of the United Kingdom; or
(b)if that person has leave to remain in the United Kingdom under the 1971 Act unless...
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