Upper Tribunal (Immigration and asylum chamber), 2021-01-27, [2021] UKUT 34 (IAC) (Binaku (s. 11 TCEA; s. 117C NIAA; para 399D))
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice Lane, President, Upper Tribunal Judge Norton-Taylor |
| Published date | 11 February 2021 |
| Date | 27 January 2021 |
| Hearing Date | 02 December 2020 |
| Status | Reported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | s. 11 TCEA; s. 117C NIAA; para 399D |
| Appeal Number | [2021] UKUT 34 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
Binaku (s.11 TCEA; s.117C NIAA; para. 399D) [2021] UKUT 00034 (IAC)
THE IMMIGRATION ACTS
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Heard remotely by Skype for Business |
Decision & Reasons Promulgated |
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On 5 November and 2 December 2020 |
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………………………………… |
Before
THE HON. MR JUSTICE LANE, PRESIDENT
UPPER TRIBUNAL JUDGE NORTON-TAYLOR
Between
shaban binaku
(anonymity directioN NOT MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the appellant: Mr Z Malik, Counsel, instructed by SMA Solicitors
For the respondent: Mr I Jarvis, Senior Home Office Presenting Officer
The procedural issue: appeals under section 11 of the TCEA 2007
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The appellate regime established by the Nationality, Immigration and Asylum Act 2002, as amended, is concerned with outcomes comprising the determination of available grounds of appeal;
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A party who has achieved the exact outcome(s) sought by way of an appeal to the First-tier Tribunal being allowed on all available grounds relied on (in respect of an individual) or because it has been dismissed on all grounds (in respect of the Secretary of State) cannot appeal to the Upper Tribunal under section 11(2) of the Tribunals, Courts and Enforcement Act 2007 against particular findings and/or reasons stated by the judge;
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Devani [2020] EWCA Civ 612; [2020] 1 WLR 2613 represents binding authority from the Court of Appeal to this effect.
The substantive issue: the relationship between Part 5A of the NIAA 2002 and the Immigration Rules
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By virtue of section 117A(1) of the 2002 Act, a tribunal is bound to apply the provisions of primary legislation, as set out in sections 117B and 117C, when determining an appeal concerning Article 8.
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In cases concerning the deportation of foreign criminals (as defined), it is clear from section 117A(2)(b) of the 2002 Act that the core legislative provisions are those set out in section 117C. It is now well-established that these provisions provide a structured approach to the application of Article 8 which will produce in all cases a final result compatible with protected rights.
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It is the structured approach set out in section 117C of the 2002 Act which governs the task to be undertaken by the tribunal, not the provisions of the Rules.
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A foreign criminal who has re-entered the United Kingdom in breach of an extant deportation order is subject to the same deportation regime as those who have yet to be removed or who have been removed and are seeking a revocation of a deportation order from abroad. The phrases “cases concerning the deportation of foreign criminals” in section 117A(2) and “a decision to deport a foreign criminal” in section 117C(7) are to be interpreted accordingly.
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Paragraph 399D of the Rules has no relevance to the application of the statutory criteria set out in section 117C(4), (5) and (6);
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It follows that the structured approach to be undertaken by a tribunal considering an Article 8 appeal in the context of deportation begins and ends with Part 5A of the 2002 Act.
DECISION AND REASONS
INTRODUCTION
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This is an appeal against the decision of First-tier Tribunal Judge Bunting (“the judge”), promulgated on 25 February 2020, by which she dismissed the appellant’s appeal against the respondent’s decision to refuse his human rights claim, which in turn had been made in the context of the appellant having re-entered the United Kingdom in breach of a deportation order.
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This case raises two issues; one procedural in nature, the other substantive. In respect of the former, we can state the question as follows: can a party who has succeeded on all available grounds in an appeal before the First-tier Tribunal and who may therefore be described as “the winner”, then appeal to the Upper Tribunal on a point of law?
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On this the parties are divided. The appellant argues that the winning party can appeal and therefore must comply with the applicable procedural steps. The respondent submits that the only appropriate vehicle for that party to raise such a ground is by way of a response under rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) (a “rule 24 response”) when the losing party has applied for, and been granted, permission to appeal.
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We have concluded that the respondent’s position is broadly correct, but, for reasons set out in due course, the answer to the procedural question is entirely academic in this case and the observations we make on the issue do not form part of the ratio of our decision.
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The substantive issue concerns the relationship between the Immigration Rules (“the Rules”) relating to deportation and the statutory framework set out in Part 5A of the Nationality, Immigration and Asylum Act 2002, as amended (“the 2002 Act”), with a particular focus on section 117C. At its heart, the question is whether the satisfaction by an individual of the relevant criteria under section 117C(4), (5), and (6) of the 2002 Act is determinative of an appeal, notwithstanding the provisions of the Rules.
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In contrast to the position regarding the procedural question, the parties are in agreement as to the correct answer: the ability to meet either of the two exceptions or to show very compelling circumstances over and above those described in the exceptions will be determinative of an appeal. That view accords with our own and provides the basis upon which we have concluded that the First-tier Tribunal erred in law and that the decision in this appeal should be re-made in the appellant’s favour.
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Before moving on, we wish to express our gratitude to both representatives for the skill with which they presented their respective cases, both in writing and orally.
BACKGROUND
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The appellant is a citizen of Kosovo, born in 1979. He first arrived in the United Kingdom in June 1998, whereupon he made an asylum claim. This was refused in July 2005 and an appeal dismissed in April 2009. In the interim, the appellant had been convicted in November 2008 of theft and possession of a weapon and was sentenced to 12 months’ imprisonment. This resulted in a deportation order being made on 21 September 2009. The appellant married his wife, a naturalised British citizen, in June 2010. In October 2011 the appellant accrued further convictions, this time for supplying Class A drugs, and was sentenced to 3 years’ imprisonment. An appeal against a decision to deport him was dismissed in April 2012. Having signed a disclaimer, the appellant was deported to Kosovo on 3 July 2012.
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The appellant then re-entered the United Kingdom on an unspecified date in 2014, in breach of the deportation order. His presence in this country was only detected when he was arrested in June 2018. Representations were submitted in January 2018 requesting that the deportation order be revoked. These were predicated on the appellant’s family life in the United Kingdom with his wife and the couple’s two children, born in November 2014 and July 2017, both of whom are British citizens. It was said that the appellant and his wife suffered from significant mental health problems and that the family unit could neither relocate to Kosovo, nor be split up.
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Following an initial rejection of the representations and the instigation of judicial review proceedings, the respondent agreed to reconsider the appellant’s case and consequently refused his human rights claim by a decision dated 7 June 2019.
THE DECISION OF THE FIRST-TIER TRIBUNAL
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The judge recorded that the appellant was not pursuing a claim that his appeal should succeed on the basis of his mental health problems alone. She subsequently concluded that the appellant could not meet the private life exception under section 117C(4) of the 2002 Act.
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The primary focus of the judge’s attention was on the position of the two children. Having accepted in full all of the evidence presented by the appellant, including a significant body of medical evidence and the report of an independent social worker, the judge concluded that it would be unduly harsh on the children to have to go to live in Kosovo or to be separated from their father. The effect of that conclusion was that the appellant had satisfied the family life exception under section 117C(5) of the 2002 Act.
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Importantly, the judge’s consideration of the appellant’s case did not end there. As the appellant had re-entered the United Kingdom in breach of a deportation order, the judge directed herself to paragraph 399D of the Rules. She noted that the threshold in that provision was a “extremely demanding one”, as made clear by the Court of Appeal in SSHD v SU [2017] EWCA Civ 1069; [2017] 4 WLR 175. The judge regarded her conclusion that relocation or separation was unduly harsh as “one factor in the 399D balancing exercise.” Having considered other surrounding circumstances resting on both sides of the balance sheet, the judge ultimately concluded that the very high threshold established by paragraph 399D had not been met and thus the appellant’s appeal fell to be dismissed.
THE GROUNDS OF APPEAL AND GRANT OF PERMISSION
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