Upper Tribunal (Immigration and asylum chamber), 2020-07-22, HU/10860/2019
| Jurisdiction | UK Non-devolved |
| Date | 22 July 2020 |
| Published date | 05 August 2020 |
| Hearing Date | 02 July 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/10860/2019 |
Appeal Number: HU/10860/2019
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/10860/2019 (V)
THE IMMIGRATION ACTS
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Heard at Cardiff Civil Justice Centre |
Decision and Reasons Promulgated |
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On 2 July 2020 remotely |
On 22 July 2020 |
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Before
UPPER TRIBUNAL JUDGE GRUBB
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
T T K K
(ANONYMITY DIRECTION MADE)
Respondent
Representation:
For the Appellant: Mr C Howells, Senior Home Office Presenting Officer
For the Respondent: Ms C Pickthall instructed by Citywide Solicitors
DETERMINATION AND REASONS
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Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) I make an anonymity order. Unless the Upper Tribunal or court directs otherwise, no report of these proceedings shall directly or indirectly identify the respondent (TTKK). This direction applies to both the appellant and to the respondent and a failure to comply with this direction could lead to contempt of court proceedings.
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Although this is an appeal by the Secretary of State, for convenience I will refer to the parties as they appeared before the First-tier Tribunal.
Introduction
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The appellant (the respondent in the Upper Tribunal) is a citizen of Zimbabwe who was born on 13 January 1992. He came to the UK on 6 August 2000 when he was 8 years old. He accompanied his aunt to the UK following the death of his parents.
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Having arrived on a six-month visit visa, the appellant was subsequently included as a dependant on a number of applications made by his aunt. The first was made on 15 February 2002 when his aunt applied for indefinite leave to remain. That application was refused on 25 June 2003 without a right of appeal. On 8 September 2003, an application for judicial review was lodged and on 15 August 2005 this was refused. The second application was made by his aunt on 6 January 2005 when she sought leave to remain under Art 3 of the ECHR. That application was refused on 4 April 2005 and, on that date, the appellant was served with a notice of his liability to be removed. The final application made by his aunt was made on 21 April 2005 when she again sought indefinite leave to remain. That application was, on that date, considered ineligible and therefore was unsuccessful.
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The appellant first made his own application on 9 April 2009 when he was 17 years old. He applied for asylum but that claim was refused on 23 February 2011. He was granted discretionary leave for three years until 23 February 2014.
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On 30 April 2014, the appellant submitted an out of time application for further leave to remain and subsequently an additional three-year period of discretionary leave was granted from 3 December 2014 until 3 December 2017.
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On 20 November 2017, the appellant submitted a further application for leave to remain and that application remained undecided until the Secretary of State’s decision on 4 June 2019 (which is the subject of this appeal) and so his leave continued by virtue of s.3C of the Immigration Act 1971. Further, by exercising his right of appeal against that decision the appellant continues to have leave under s.3 until the conclusion of these appeal proceedings.
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On 8 March 2019 at the Newport Crown Court the appellant was convicted of conspiracy to supply a controlled drug, namely class A (crack cocaine). On 22 March 2019, he was sentenced to 40 months’ imprisonment.
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As a consequence of that conviction, on 5 April 2019, the appellant was served with a notice of a decision to deport him on the grounds that deportation was conducive to the public good.
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On 3 May 2019, the appellant’s legal representatives made submissions amounting to an Art 8 claim seeking to resist the decision to deport the appellant.
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On 4 June 2019, the Secretary of State refused the appellant’s claim under Art 8 of the ECHR and, as I have already noted, his outstanding application made on 20 November 2017.
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On 30 May 2019, a deportation order was signed on behalf of the Secretary of State. The deportation order did not have the effect of invalidating his leave (see, Tirabi (Deportation: "lawfully resident": s.5(1)) [2018] UKUT 199 (IAC)).
The Appeal to the First-tier Tribunal
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The appellant appealed against the refusal of his human rights claim under Art 8 to the First-tier Tribunal.
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In a determination sent on 27 January 2020, Judge B Lloyd allowed the appellant’s appeal under Art 8. Before the judge, the appellant relied upon the two exceptions found in s.117C(4) and (5) of the Nationality, Immigration and asylum Act 2002 as amended (“the NIA Act 2002”). In fact, he relied on the equivalent exceptions to deportation in paras 399A and 339 respectively of the Immigration Rules (HC 395 as amended). It is convenient that I should refer to the statutory provisions in s.117C(4) and (5) as was common ground before me.
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As regards Exception 1 in s.117C(4), the appellant claimed that he had (a) been lawfully resident in the UK for most of his life; (b) he was socially and culturally integrated in the UK; and (c) there were very significant obstacles to his integration into Zimbabwe on return. The judge accepted that the requirements of Exception 1 were met, in particular finding that there would be “very significant obstacles” to his integration on return to Zimbabwe.
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As regards Exception 2 in s.117C(5), the appellant relied upon his relationship with his British citizen partner (“Ms T”) and their child (“F”) who is a British citizen and had been born on 10 June 2016. Judge Lloyd accepted that the appellant had a genuine and subsisting relationship both with his partner and son. He also accepted that it would be “unduly harsh” to expect his partner and son to return to Zimbabwe with the appellant. The crucial issue was whether or not the separation of the appellant on his return to Zimbabwe leaving his partner and child in the UK would have an “unduly harsh” impact upon them. Judge Lloyd found that it would and so consequently the requirements of Exception 2 were also met.
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On that basis, Judge Lloyd allowed the appellant’s appeal under Art 8 of the ECHR.
The Appeal to the Upper Tribunal
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The Secretary of State sought permission to appeal to the Upper Tribunal. She did so essentially on two grounds. First, the judge had failed to give adequate reasons why there were “very significant obstacles” to the appellant’s integration on return to Zimbabwe. Secondly, the judge had failed to give adequate reasons why the separation of the appellant from his son and partner would be “unduly harsh” applying the high test set out by the Supreme Court in KO (Nigeria) & Ors v SSHD [2018] UKSC 53.
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On 6 March 2020, the First-tier Tribunal (Judge McClure) granted the Secretary of State permission to appeal. Judge McClure granted permission to appeal on two grounds.
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First, that the judge had arguably failed properly to consider the “unduly harsh” test in s.117C(5).
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Secondly, Judge McClure gave permission to appeal on a ground which the respondent had not raised in her grounds of appeal. It related to Exception 1. Judge McClure concluded that it was arguable that the judge had been wrong to find that the first requirement in Exception 1 was met, namely that the appellant had been “lawfully resident in the United Kingdom for most of [his] life”. Judge McClure reasoned as follows:
“The appellant had entered as a visitor in 2000 when he was 8, and does not appear to have had lawful leave thereafter to be in the United Kingdom until 2011 when he was granted discretionary leave which was extended initially until December 2017 and thereafter by operation of Section 3C of the 1971 Immigration Act. The appellant, at the time of the hearing, therefore had only had leave for eight years and therefore did not meet all the requirements of paragraph 399A [mirroring Exception 1 in s.117C(4)]. In allowing the appeal the judge has found that the appellant has been lawfully resident the (sic) much of his life but that is not the wording of the Immigration Rule. In the circumstances there is a Robinson obvious point that the judge has not applied the Rule as it is set out.”
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Following the grant of permission, without objection from the parties, the Upper Tribunal in the light of the COVID-19 crisis, directed that a remote hearing by Skype Business should take place in order to determine whether the judge had erred in law in allowing the appellant’s appeal.
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The appeal was listed for such a remote hearing on 2 July 2020. The hearing took place with me based in the Cardiff Civil Justice Centre with Mr Howells, for the Secretary of State and Ms Pickthall for the appellant taking part remotely.
The Issues
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The parties raised four issues before me.
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Is the Secretary of State entitled to rely upon the ground of appeal, upon which Judge McClure granted permission, but which had not been raised by the Secretary of State in her grounds of appeal?
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If the Secretary of State was entitled to rely on that ground, did the judge err in law in concluding that the first requirement in Exception 1 was met that the appellant had, in fact, been...
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