Upper Tribunal (Immigration and asylum chamber), 2021-02-16, HU/22145/2018
| Jurisdiction | UK Non-devolved |
| Date | 16 February 2021 |
| Published date | 18 May 2021 |
| Hearing Date | 08 January 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/22145/2018 |
Appeal Number: HU/22145/2018
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/22145/2018 (‘V’)
THE IMMIGRATION ACTS
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Heard at Field House and via Skype |
Decision & Reasons Promulgated |
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On 31st July 2020 and 8th January 2021 |
On 16th February 2021 |
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Before
UPPER TRIBUNAL JUDGE KEITH
Between
‘AEB’
(ANONYMITY DIRECTION CONTINUED)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
By virtue of this appeal relating to the circumstances of three minor children, it is appropriate that the previous anonymity direction is maintained. Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. Failure to comply with this direction could lead to contempt of court proceedings.
Representation:
For the Appellant: Ms E Griffiths, instructed by Duncan Lewis Solicitor Solicitors
For the Respondent: Mr C Howells, Senior Home Office Presenting Officer
DECISION AND REASONS
Background to remaking decision
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This is the remaking of the decision in the appellant’s appeal against the respondent’s refusal of his human rights claim, a deportation order having been against the appellant on 17th October 2018. This was in the context of the appellant being a foreign criminal, (a citizen of Nigeria) with his most recent criminal offending resulting in a sentence of imprisonment of four years, so that section 117C(6) of the Nationality, Immigration and Asylum Act 2002 applies, namely the public interest requires the appellant’s deportation, unless the appellant shows that there are very compelling circumstances, over and above those described in ‘Exceptions 1’ or ‘2’, as contained within section 117C(4) and (5) of the 2002 Act.
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As noted in the error of law decision annexed to this remaking decision, the appellant’s claims had involved the following issues:
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in relation to his family life, whether the applicant has a genuine and subsisting parental relationship with his British citizen children and step-son; and
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if he did, whether the effects on them would be unduly harsh, if they had to remain in the UK without the appellant;
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in relation to his private life, noting that the appellant has never had lawful leave to remain in the UK, beyond a claimed initial visit visa, long-since expired, whether there would be very significant obstacles to his integration into Nigeria, his country of origin;
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and noting both his family and private life, whether there were very compelling circumstances over and above those described in Exceptions 1 and 2. As a serious foreign criminal, the appellant may refer to the circumstances described in those two Exceptions, or features falling outside the circumstances described in those Exceptions, to the extent that they make his claim based on Article 8 especially strong, so as to amount to very compelling circumstances.
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In refusing the appellant’s human rights claim, the respondent considered the appellant’s convictions (all involving offenses of dishonesty), the most recent of which had resulted in a conviction in 2017 and a sentence to imprisonment for four years, for conspiracy to defraud and money-laundering. The sentencing Judge had described as the appellant as being at the “centre of this conspiracy”, playing a “leading role” in the fraud which was “highly sophisticated,” over a “sustained period”, with a “large number of victims;” which the appellant had been able to perpetrate as he had inside knowledge of the corporate victim, Southern Rail, as one of its former employees, so there was an abuse of a position of trust. The respondent did not accept, in her refusal decision, that the appellant had a genuine and subsisting relationship with his children; he was no longer in a relationship with his former partner, the children’s mother; and there were no very significant obstacles to the appellant’s integration in Nigeria, noting that he had never had leave to remain in the UK (having worked in the UK unlawfully and having obtained work through use of a false British birth certificate).
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In a decision promulgated on 4th October 2019, First-tier Tribunal Judge Chana (the ‘FtT’), dismissed the appellant’s appeal against the respondent’s refusal of his human rights claim.
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The appellant appealed and I allowed the appeal for the reasons set out in the annexed decision, which it is unnecessary to repeat, suffice it to say that the FtT’s decision was set aside, without preservation of any finding of fact. I concluded that it was appropriate to retain remaking in the Upper Tribunal, given the narrowness of the scope of the issues as they had developed since the respondent’s initial refusal.
The issues in this appeal
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I identified and agreed with the representatives the legal issues in dispute in this case, which, as noted above, had narrowed since the appeal before the FtT.
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The respondent now accepted that the appellant had a genuine and subsisting parental relationship with his step-son, ‘O;’ and his biological children, a son, ‘A’ and a daughter, ‘C,’ albeit he was in a non-resident relationship with them. All children were, and are, minors. The respondent further accepted that it would be unduly harsh for the children, all British citizens, to live in Nigeria, the appellant’s country of origin, noting their specific needs and vulnerabilities, and the fact that their mother, ‘MD’ had indefinite leave to remain in the UK and was no longer in a relationship with the appellant. The respondent therefore accepted that what is sometimes termed the ‘go option’ was not viable, but the option of the children staying in the UK with MD without the appellant (the ‘stay option’) was not, in the respondent’s view, unduly harsh.
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The core questions, for the purposes of family life, were whether:
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the effects of the ‘stay option’ (for the children to remain in the UK without the appellant) was unduly harsh; and beyond that;
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whether there were very compelling circumstances, by virtue of the individual complexity and seriousness of the childrens’ needs; and the fact that all three children had such needs.
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While the issue of whether the effect of the ‘stay option’ was unduly harsh should be without reference to the nature of the appellant’s offending, when coming on to consider very compelling circumstances, the length of sentence beyond four years and the nature of the offences (which were not violent or drugs-related) needed to be considered, as did the impact on MD to be able, alone, or with professional help, to look after the children; the appellant’s claimed rehabilitation and lack of further offending; and the lessened weight of the public interest in immigration control in light of the respondent’s failure to deal with an earlier application in 2007 for leave to remain, for over a decade.
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In relation to the appellant’s private life, the respondent accepted that notwithstanding his offending, the appellant was socially and culturally integrated in the UK, but disputed that he met the other criteria of Exception 1 – he had been in the UK, even on his own case since 1992, for less than half of his life and had never had leave to remain in the UK. An issue remained of whether there were nevertheless features of his private life, particularly the obstacles to his integration in Nigeria and his earlier application for leave to remain in the UK, made in 2007, which amounted to very compelling circumstances.
The hearing before me
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The first day of the hearing took place on 31st July 2020, via Skype for Business, (I attended from Field House) but for the reasons set out in my order adjourning the hearing, I had to relist the remaking for a resumed hearing. As recorded in the order, it was necessary for me to overcome a number of issues during the first day of the hearing which were unrelated to technology. The first was that the appellant had not been provided with a copy of his witness statement resulting in the appellant’s Counsel, Ms Griffiths, having to show him a copy over Skype for the appellant to read and adopt. Second, MD, the other witness, had also not been provided with a copy of her witness statement and, without criticism of her, her confidence in her ability to read even via Skype was limited such that it became necessary for me to read out loud both statements and confirm their accuracy with her. I was satisfied that the appellant was able to give oral evidence, on which he was cross-examined via Skype, but when it came to MD giving oral evidence, whilst initially the communications were adequate, it became increasingly difficult to hear what she was saying and such were my concerns I concluded that a fair hearing to consider the remainder of her...
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