Upper Tribunal (Immigration and asylum chamber), 2021-01-27, HU/11100/2019
| Jurisdiction | UK Non-devolved |
| Date | 27 January 2021 |
| Published date | 10 February 2021 |
| Hearing Date | 02 December 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/11100/2019 |
HU/11100/2019
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/11100/2019 (V)
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 |
On 27 January 2021 |
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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
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 cases 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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The grounds of appeal took aim at the judge’s consideration of a number of factors weighed up in the proportionality exercise. Nothing was specifically raised in respect of the interaction between the conclusion that the exception under section 117C(5) had been met and the failure to have satisfied the test under paragraph 399D.
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In granting permission, Upper Tribunal Judge Norton-Taylor deemed it appropriate to state an additional issue in relation to which the judge may have erred in law. This was put in the following terms:
“[W]as the judge entitled to conclude that the appellant had to meet the test under paragraph 399D of the Immigration Rules in order to succeed, notwithstanding the fact that exception 2 under section 117C [of the 2002 Act] applied, or was satisfaction of that exception determinative of the appeal?”
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In the event, it is the answer to this question which has provided the basis on which we have ultimately decided this appeal.
THE PROCEDURAL ISSUE: RELEVANT LEGAL FRAMEWORK
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The two core legislative provisions relevant to the procedural issue are sections 11 and 13 of the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”). Subsections (1) and (2) of section 11 provide:
“(1) For the purposes of subsection (2), the reference to a right of appeal is to a right to appeal to the Upper Tribunal on any point of law arising from a decision made by the First-tier Tribunal other than an excluded decision.
(2) Any party to a case has a right of appeal, subject to subsection (8).”
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Subsections (1) and (2) of section 13 provide:
“(1) For the purposes of subsection (2), the reference to a right of appeal is to a right to appeal to the relevant appellate court on any point of law arising from a decision made by the Upper Tribunal other than an excluded decision.
(2) Any party to a case has a right of appeal, subject to subsection (14).”
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Subsections (8) of section 11 and (14) of section 13 have no bearing on our consideration of this case.
THE PROCEDURAL ISSUE: DISCUSSION
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The procedural issue in this case arose because, following the grant of permission, the respondent provided a rule 24 response. This purported to challenge the judge’s findings on the undue harshness issue under section 117C(5) of the 2002 Act.
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This attempted challenge was refuted in the appellant’s first skeleton argument, wherein it was asserted that the respondent had not sought to appeal to the Upper Tribunal on the issue in question and therefore was...
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