Upper Tribunal (Immigration and asylum chamber), 2020-10-29, HU/12784/2019
| Jurisdiction | UK Non-devolved |
| Date | 29 October 2020 |
| Published date | 12 November 2020 |
| Hearing Date | 25 September 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/12784/2019 |
Appeal Number: HU/12784/2019
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/12784/2019
THE IMMIGRATION ACTS
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Heard at Manchester via Skype On 25 September 2020 |
Decision & Reasons Promulgated On 29 October 2020 |
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Before
UPPER TRIBUNAL JUDGE HANSON
Between
MS
(Anonymity order made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Ball instructed by Mordi & Co Solicitors.
For the Respondent: Mr P Deller Senior Home Office Presenting Officer.
DECISION AND REASONS
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MS is a male citizen of South Africa born on 14 November 1988 who is the subject of an order for his deportation from the United Kingdom pursuant to the UK Borders Act 2007.
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By a decision dated 30 June 2020 the Upper Tribunal set aside the decision of the First-tier Tribunal and listed the matter for a further hearing to enable it to substitute a decision to either allow or dismiss the appeal.
Background
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On 14 February 2017, at Ipswich Crown Court, MS pleaded guilty to and was sentenced on two counts as follows:
Count 1: Taking a child without lawful authority, contrary to section 2(1)(a) of the Child Abduction Act 1984: 32 months’ imprisonment.
Count 2: Assault by bearing, contrary to section 39 of the Criminal Justice Act 1988: 4 months imprisonment, concurrent.
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In February 2017 MS was notified of a decision to deport him from the United Kingdom.
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On 30 July 2018 First-tier Tribunal Judge O’Callaghan dismissed his appeal against the refusal of his human rights claim relied upon as an exception to deportation.
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On 27 December 2018 MS submitted further representations showing how he had addressed his alcohol misuse.
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On 25 July 2019, the Secretary of State accepted the further submissions amounted to a Fresh Claim pursuant to paragraph 353 of the Immigration Rules but refused the application against which MS appealed. It is this appeal which is ‘at large’ before the Upper Tribunal.
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Preserved findings from the decision of the First-tier Tribunal are:
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Immigration history – The appellant entered the United Kingdom on 4 August 2004 as a dependent child (aged 15) of his mother, [VM]. The appelanst was granted indefinite leave to remain on 21 July 2006.
ii. Criminal history – as above. The appellant has no other convictions or cautions according in the copy PNC record in the appeal papers.
iii. Composition of family unit – The appellant married a British citizen, [AS] on 10 April 2012. They have two children [NS] born 24 April 2012 and [SS] born 21 November 2015. MS also has a son, [OM-W] born 12 December 2007, from a previous relationship who resides with his mother.
iv. Findings regarding attendance at alcohol counselling sessions -
i. “[S]ince the previous decision was promulgated on 23/07/2018 the appellant has taken positive steps to tackle his alcohol misuse.” FTT decision at [44].
ii. “In the period between August 2018 and to the present day the appellant has been attending monthly sessions with Ms Hunter.” FTT decision at [52].
iii. The Judge noted the evidence of Paul Moyse of Foyer Hostel that [MS] was “hard working and dedicated” FTT decision at [45].
iv. The Judge accepted that the Appellant had attended four Alcoholics Anonymous sessions, but that he preferred the one to one sessions offered by Anna Hunter to the group sessions at Alcoholics Anonymous. FTT decision at [47].
Discussion
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Although the pleadings the submissions made prior to today’s hearing indicated the appellant’s approach to this matter was that as Judge O’Callaghan had found it to be a borderline matter and that the only reason the appeal had been dismissed was as a result of the lack of evidence that the appellant had sought to address his alcohol misuse, and that he had now done so, the appeal should be allowed without more, Mr Ball confirmed this was not how the appellant was presenting his case.
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The earlier suggestion that as the appellant had resolved one issue of concern to Judge O’Callaghan should have succeeded in accordance with the Devaseelan principle is a submission without arguable merit, per se. The Court of Appeal have recently considered the Devaseelan principle in AL(Albania) [2019] EWCA Civ 950 and BK (Afghanistan) [2019] EWCA Civ 1358.
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In BK (Afghanistan) the Court of Appeal stressed the importance of not allowing the guidance to place unacceptable restrictions on the second judge’s ability to determine the appeal in front of him.
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What is it important is the need to assess the factual matrix that exists at the date of the hearing and to consider relevant legal provisions, especially in light of recent decisions of the Court of Appeal in this area. The key question in an appeal of this nature is whether the appellant’s circumstances engage article 8 ECHR and whether the consequences of any interference with a protected right is sufficient to outweigh the strength given to the respondent’s right to deport a foreign criminal from the United Kingdom.
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The relevant provisions of the Immigration Rules are A398-399A. In this case they provide that for someone sentenced to less than 4 years but at least 12 months (as MS was) the public interest in deportation will be outweighed if one of two relevant criteria are met:
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it would be “unduly harsh” for a British child or British partner to go to South Africa with their father, or remain in the UK without him (399(a) and (b)): or
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he has been lawfully resident in the UK for most of his life; and he is socially and culturally integrated; and there would be “very significant obstacles to his integration” in South Africa (399A).
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Section 117C of the Nationality Immigration and Asylum Act 2002 provides that the public interest does not require a person’s deportation (‘C’) if they have been sentenced to less than 4 years and:
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Exception 1: lawfully resident ‘most of C’s life’; ‘socially and culturally integrated’; and ‘very significant obstacles’ (s117C(4)).
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Exception 2: ‘the effect of C's deportation on the partner or child would be unduly harsh.’ (s117C(5))
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In relation to the question whether there would there be very significant obstacles to MS’s integration in South Africa, both parties referred to the decision of the Court of Appeal in Kamara v Secretary of State for the Home Department [2016] EWCA Civ 813 in which Sales LJ commented on the “very significant obstacles” test, for the purposes of the third limb of the private life exception to deportation at paragraph 14 as follows:
“In my view, the concept of a foreign criminal's "integration" into the country to which it is proposed that he be deported, as set out in section 117C(4)(c) … is a broad one. It is not confined to the mere ability to find a job or to sustain life while living in the other country. It is not appropriate to treat the statutory language as subject to some gloss and it will usually be sufficient for a court or tribunal simply to direct itself in the terms that Parliament has chosen to use. The idea of "integration" calls for a broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day-to-day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual's private or family life.”
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Whilst the appellant claims he is unfamiliar with modern life in South Africa, ‘culture shock’ does not amount to a very significant obstacle: see SSHD v Olarewaju [2018] EWCA Civ 557.
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Whilst there are some cultural differences between the UK and South Africa it is relevant that that country formed part of the British Empire from 1910 to 1961 meaning that many aspects of life in South Africa will be familiar to MS.
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It was not made out MS will be unable to obtain work in light of this previous experience, educational and vocational qualifications. The cost of his needs if paid for in the local currency will be similar to those in the UK or, if he receives any remittances form the UK in £ (Stirling), prices will be much lower and he will be able to enjoy a higher-quality lifestyle. It was not made out he would not be accepted in either employment or society in general or that he lacks the capacity and ability to participate and operate on a day-to-day basis.
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South Africa is similar to the UK in that is does offer state-run healthcare, with small fees charged related to income and number of dependents.
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Although not conceding the point Mr Ball accepted this was not the strongest ground of challenge, a sentiment I completely agree with. Whilst accepting that any transition will be difficult, I do not find on evidence made available to the Upper Tribunal that the appellant has established very significant obstacles to his reintegration into South Africa.
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The real issue in this appeal is the question of whether the appellant’s deportation from the United Kingdom will...
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