Upper Tribunal (Immigration and asylum chamber), 2021-01-28, HU/10631/2017
| Jurisdiction | UK Non-devolved |
| Date | 28 January 2021 |
| Published date | 11 February 2021 |
| Hearing Date | 18 December 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/10631/2017 |
Appeal Number: HU/10631/2017
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/10631/2017
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 18 December 2020 |
On 28 January 2021 |
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Before
UPPER TRIBUNAL JUDGE NORTON-TAYLOR
DEPUTY UPPER TRIBUNAL JUDGE STOUT
Between
anthony earl webb
(anonymity directioN NOT MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the appellant: Mr R Sharma, Counsel, instructed by Gordon and Thompson Solicitors
For the respondent: Mr S Kotas, Senior Home Office Presenting Officer
REMAKE DECISION AND REASONS
Introduction-
This is the remaking component of the Upper Tribunal’s decision in this appeal. Whilst it was the Secretary of State who successfully appealed against the decision of the First-tier Tribunal, as matters now stand it is appropriate to refer to the parties as they were at first instance: Mr Webb is therefore once more the appellant and the Secretary of State is the respondent.
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The appellant is a citizen of Jamaica, born in March 1991. He arrived in the United Kingdom in December 1997 at the age of six. He was granted indefinite leave to remain on 24 August 2004. Following a conviction in February 2010 for conspiracy to commit robbery and a consequent sentence of three years’ imprisonment in a Young Offender Institution, the respondent commenced deportation action. The appellant successfully resisted this on appeal in 2011. His current appeal is against the respondent’s decision of 13 September 2017, refusing his human rights claim which had been made in response to a further decision to deport him, dated 31 July 2017. The deportation action was based a number of convictions acquired between 2012 and 2016, together with police intelligence that the appellant was a member of a London gang.
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By a decision promulgated on 23 October 2019, the First-tier Tribunal allowed the appellant’s appeal on Article 8 grounds. The judge concluded that the appellant was not a “persistent offender” and was not associated with a gang. Whilst describing the appellant as a “stranger to Jamaica”, the judge allowed the appeal not on the basis of the private life limb of Article 8, but in relation to family life. He concluded that it would have been “unduly harsh” for the appellant’s children to go to Jamaica and for them to be separated from him if he were to return there alone.
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On appeal by the respondent, the panel (comprising Lord Uist, sitting as a Judge of the Upper Tribunal, and Upper Tribunal Judge Norton-Taylor) found that the judge had materially erred in law by failing to provide adequate reasons for his conclusions on the “unduly harsh” issue. The judge’s decision was set aside. The full error of law component of the Upper Tribunal’s decision in this appeal is appended, below.
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Under the sub-heading “Disposal”, it was concluded that in light of the factual issues in the case and the absence of any application from the appellant to adduce further evidence, a resumed hearing was unnecessary. With reference to section 117C of the Nationality, Immigration and Asylum Act 2002, as amended (“NIAA 2002”), the parties were directed to provide written submissions on the following matters:
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whether the appellant was a “persistent offender” or whether his offending had caused “serious harm”;
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whether the appellant is “socially and culturally integrated” in the United Kingdom;
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whether there would be “very significant obstacles” to the appellant’s integration into Jamaican society;
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whether it would be “unduly harsh” for the appellant’s partner and three relevant children to leave the United Kingdom and reside in Jamaica;
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whether it would be “unduly harsh” for the appellant’s partner and the three relevant children to remain in the United Kingdom were the appellant to be deported to Jamaica alone;
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whether, notwithstanding an inability to satisfy either of the two exceptions under section 117C(4) and (5), it would be disproportionate to deport the appellant.
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Four specific findings made by the judge were preserved:
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the appellant had a genuine and subsisting relationship with his current partner;
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the appellant had a genuine and subsisting parental relationship with his two biological children with whom he lived, and with his step-daughter;
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the appellant left Jamaica at the age of 6;
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the appellant was not currently a member of a gang.
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In compliance with the directions referred to above, the appellant filed and served written submissions, dated 5 March 2020 and received by the Upper Tribunal the following day. Prior to the respondent being in a position to provide a response, the Covid-19 pandemic took hold. Directions were issued on 16 April 2020 (appended below). It transpired that the relevant Senior Presenting Officer with conduct of the case (Mr Kotas) had not received the appellant’s written submissions. The Tribunal forwarded the submissions onto Mr Kotas. Further directions were sent out on 18 May 2020. On 28 May 2020, the respondent filed and served her written submissions in response to those from the appellant. There was no reply from the appellant within the stipulated timeframe. On 19 June 2020, directions were issued by email in the following terms:
“This appeal is awaiting a re-making decision in the Upper Tribunal. Pursuant to directions sent out on 18 May 2020, the respondent filed and served written submissions on 28 May 2020 (attached).
Any reply from the appellant was due to be filed and served by 4 June 2020. To date, there has been no such reply.
There is now a further and final opportunity for the appellant to file and serve any reply to the respondent written submissions. Any such reply must take note of what is said at [3]-[5] of those submissions. Any reply, should also, if appropriate, address the issue of whether a hearing should be conducted, notwithstanding the Tribunal’s previously stated view that one is not necessary.
Any reply must be filed and served no later than 5 days from the date of this email direction.”
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On 26 June 2020 the following response was received from the appellant:
“Re: Mr - Earl Anthony Webb 28 March 1991 Jamaica
HU/10631/2017
We write further to the Tribunal directions dated 19 June 2020.
Please note that the Secretary of State for the Home Office (SSHD) were served the appellant's bundle as this was an appeal from the SSHD. Although we are sympathetic that Mr Kotas did not have access to the papers when drafting the response, we cannot be held responsible for it in any sense. In any case Mr Kotas was familiar with the case since he represented the SSHD at the hearing before you on 15 January 2020.
The Tribunal is respectfully invited to dismiss the SSHD's appeal. In the alternative, we submit that this appeal requires a hearing given the issues involved and complexity of the evidence.”
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Having received these responses from the parties, the Tribunal considered whether a further hearing was required. Ultimately, Upper Tribunal Judge Norton-Taylor concluded that a further hearing was required (a Note and Directions Notice, dated 6 July 2020, to this effect is appended, below). In this respect, it should be observed that the appellant’s representatives might have provided greater assistance to the Tribunal, particularly in respect of the reply dated 26 June 2020. Contrary to what is said therein, the stage at which these proceedings constituted the respondent’s appeal to the Upper Tribunal has been and gone. In addition, simply stating that “the issues involved and complexity of the evidence” necessitated a further hearing did nothing to substantiate the assertion.
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However, the remaking decision involves four minor children (three of whom play an important part in this case) whose particular circumstances have not been assessed since the decision of the First-tier Tribunal was written on 18 October 2019. Although there had been no application under rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008 to adduce new evidence, in Judge Norton-Taylor’s view it was important to be in a position to...
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