Upper Tribunal (Immigration and asylum chamber), 2020-07-30, PA/09273/2017
| Jurisdiction | UK Non-devolved |
| Date | 30 July 2020 |
| Published date | 13 August 2020 |
| Hearing Date | 16 July 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | PA/09273/2017 |
Appeal Number: PA/09273/2017
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/09273/2017 (V)
THE IMMIGRATION ACTS
|
Heard at: Field House |
Decision & Reasons Promulgated |
|
On: 16 July 2020 |
On: 30 July 2020 |
Before
UPPER TRIBUNAL JUDGE KEBEDE
Between
CHATERAM [P]
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr E Waheed, instructed by Lambeth Solicitors
For the Respondent: Mr I Jarvis, Senior Home Office Presenting Officer
DECISION AND REASONS
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This has been a remote hearing to which there has been no objection from the parties. The form of remote hearing was skype for business. A face to face hearing was not held because it was not practicable and all issues could be determined in a remote hearing.
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The appellant appeals, with permission, against the decision of the First-tier Tribunal dismissing his appeal against the respondent’s decision of 30 August 2017 refusing his protection and human rights claim, further to a deportation order issued against him on 14 August 2014.
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The appellant is a citizen of Guyana, born on 26 November 1988. He arrived in the UK on 20 July 2005, aged 16, with entry clearance as the dependant of his mother who held a work permit visa. He was granted further leave on the same basis, followed by indefinite leave to remain as his mother’s dependant, on 10 September 2009.
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On 17 January 2014 the appellant was convicted of three counts of assault and was sentenced to a total of 15 months’ imprisonment. On 11 March 2014 he was served with a notice of liability to automatic deportation and on 14 August 2014 a deportation order was signed. A decision was also made to refuse his human rights claim and to certify the claim under section 94B of the Nationality, Immigration and Asylum Act 2002. The appellant made written representations on several occasions, on medical grounds, between 2014 and 2016, all of which were refused under paragraph 353 of the immigration rules. He also made various unsuccessful applications for judicial review to challenge the refusal decisions. On 23 May 2017 the appellant claimed asylum. Following the judgment in Kiarie and Byndloss, R (on the applications of) v Secretary of State for the Home Department [2017] UKSC 42 the section 94B certified decision of 14 August 2014 and the refusal decisions made under paragraph 353 were withdrawn.
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The respondent then made a new decision on 30 August 2017 refusing the appellant’s protection and human rights claim. The appellant’s asylum claim was treated as implicitly withdrawn, under paragraph 333C of the immigration rules, owing to the lack of information and evidence provided. As for the appellant’s human rights claim, the respondent considered that the exceptions to deportation in paragraph 399 and 399A did not apply. The respondent accepted that the appellant had a genuine and subsisting relationship with a British partner but did not consider that it would be unduly harsh for his partner to live with him in Guyana or to live without him in the UK. With regard to private life, the respondent noted that the appellant had not spent more than half his life in the UK and did not accept that he was socially and culturally integrated in the UK or that there were very significant obstacles to his integration in Guyana. The respondent did not accept that there were any very compelling circumstances outweighing the public interest in the appellant’s deportation, noting his conviction in January 2014 on three counts of assault, a previous conviction on 12 December 2012 for using threatening and abusive words for which he received a one year community order, and a subsequent conviction on 17 October 2016 for sending a communication/ article of an indecent/ offensive nature, for which he was sentenced to a one year community order. The respondent concluded that the appellant’s deportation would not breach Article 8. In regard to Article 3, the respondent noted that the appellant suffered from mental health issues and that the medical evidence referred to him having tried to hurt himself with a rope/ hanging and to continue to have suicidal thoughts. The respondent did not accept that the appellant’s mental health problems reached the Article 3 threshold and did not accept that he could succeed on Article 3 grounds in relation to a risk of suicide.
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The appellant appealed against the respondent’s decision and his appeal was heard in the First-tier Tribunal on 28 March 2019 by First-tier Tribunal Judge Devittie. The evidence before the judge was that the appellant was living with his mother and his partner, both of whom provided him with emotional and financial support. The appellant’s mother was a nurse in full-time employment and his partner was a teacher. The appellant stated that he had no ties to Guyana and would not be able to find work there because of his mental health condition. His partner would not be able to move to Guyana with him due to her ties to the UK. The judge also had before him a witness statement from the appellant’s friend as well as evidence from the appellant’s GP which referred to his depression, thoughts of self-harm and increased alcohol consumption.
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Judge Devittie noted that the appellant had arrived in the UK aged 16 and was currently 31 and observed that there was a sense in which it could be said that he had spent most of his life in the UK. He also found that the appellant was fully integrated in the UK. However he concluded that, whilst there were significant obstacles to the appellant’s integration in Guyana owing to his mental health condition, he did not consider such obstacles to be very significant. The judge accepted that the appellant was in a genuine relationship with his partner and that they intended to get married. He accepted that it would be unduly harsh for the appellant’s partner to move to Guyana. However, whilst he accepted that the appellant’s separation from his partner would effectively destroy their relationship, he did not find that the appellant’s removal from the UK would be unduly harsh on his partner and he did not consider that there were very compelling circumstances outweighing the public interest in his deportation. He accordingly dismissed the appeal.
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The appellant sought permission to appeal Judge Devittie’s decision to the Upper Tribunal on the grounds that he had failed to follow the guidelines in Razgar [2004] 2 AC 368 and had failed to take into account the rights of the appellant’s partner in accordance with the guidance in Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39; that the judge had overstepped his powers by assuming the role of doctor in assessing the appellant’s ability to manage in Guyana in light of his mental health concerns; and that the judge’s findings were inconsistent with guidance in Huang v Secretary of State for the Home Department [2007] UKHL 11 and JD (Congo) & Ors v Secretary of State for the Home Department & Anor [2012] EWCA Civ 327.
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Permission to appeal was refused by the First-tier Tribunal and, on a renewed application, by the Upper Tribunal. However, in a “Cart” challenge to the Administrative Court, the appellant sought to judicially review the refusal to grant permission and permission was granted by the Honourable Mr Justice Griffiths on the following basis:
“The FTT decision considered the application of section 117C and found that Exception 1(a) and (b) applied (claimant lawfully resident in the UK for most of his life, socially and culturally integrated in the UK). In relation to (c) …the FTT decision identified many relevant factors but concludes that “whilst it is fair to say that there would be significant obstacles to his integration, I am not able to reach the conclusion that such obstacles would be very significant.” The basis on which the FTT drew this distinction was arguably wrong in law. Much of its reasoning was to the effect that the significant obstacles in question might have been worse but the test is “very significant” not “most significant” or “significant in the extreme”. The claimant would have succeeded if he had been within Exception 1.
The FTT decision also considered Exception 2 and accepted that C “has a genuine and subsisting relationship with a qualifying partner”. As to whether “the effect of C’s deportation on the partner…would be unduly harsh” the FTT decided that the relationship had been one of cohabitation since 2013 and that they intended to marry and start a life together and that “considerable emotional distress will be caused to his partner by a separation from him” and that deportation would mean the end of the relationship altogether…The FTT decided that there would be “harsh consequences”…but that they would not be “unduly harsh”. The basis upon which this distinction was drawn was arguably wrong in law, since (a) it was based on the partner’s health, employment, and family and friends, rather than on the effect of the deportation and end of the relationship, and (b) it was based on the fact that the consequences would be mitigated, rather than considering whether they were in themselves unduly harsh. The claimant...
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