Upper Tribunal (Immigration and asylum chamber), 2021-06-02, HU/20913/2019
| Jurisdiction | UK Non-devolved |
| Date | 02 June 2021 |
| Published date | 17 June 2021 |
| Hearing Date | 20 May 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/20913/2019 |
Appeal Number: HU/20913/2019
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/20913/2019 (V)
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision & Reasons Promulgated |
|
On 20 May 2021 |
On 2 June 2021 |
|
(remote hearing) |
|
Before
UPPER TRIBUNAL JUDGE SHERIDAN
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
OLUWAFEMI EBENEZER JNR OLAPADE
(ANONYMITY DIRECTIOn NOT MADE)
Respondent
Representation
For the Appellant: Mr Clarke, Senior Home Office Presenting Officer
For the Respondent: Mr Byrne, Counsel instructed by Visa Inn Immigration Specialists
This has been a remote hearing to which both parties have consented. The form of remote hearing was video by Skype (V). A face to face hearing was not held because it was not practicable and all issues could be determined in a remote hearing. I did not experience any difficulties, and neither party expressed any concern, with the process.
DECISION AND REASONS
-
I will refer to the parties as they were designated in the First-tier Tribunal.
Background
-
The appellant is a citizen of Nigeria born on 18 June 1976. He entered the UK in 2013 as a visitor, with leave until 18 January 2015. He did not leave when his visa expired.
-
On 2 March 2016 he applied for leave to remain in the UK on the basis of his family life with a British partner and his son (“JO”), who is a British national born on 5 May 2015. He was granted leave until 22 January 2019.
-
On 24 April 2017 the appellant was convicted of a serious driving offence.
-
On 21 January 2019 the appellant applied for further leave to remain on the basis of his family life with his partner and JO.
-
On 24 July 2019 he was convicted of affray and, on 3 September 2019, sentenced to 12 months imprisonment.
-
On 13 September 2019 the appellant was served with a decision to make a deportation order against him under section 32(5) of the UK Borders Act 2007. The appellant, in representations made on 1 October 2019, argued that his deportation would violate article 8 ECHR. On 11 December 2019 the respondent served a deportation order on the appellant along with an appealable decision refusing his human rights claim. The respondent’s decision also stated that it was not accepted that the appellant had a derivative right to reside in the UK under EU law as the primary carer of JO.
-
The appellant appealed to the First-tier Tribunal where his appeal came before Judge of the First-tier Tribunal Swaney (“the judge”). The judge’s decision, which was promulgated on 30 one July 2020, is now being appealed by both parties.
Decision of the First-tier Tribunal
-
The judge found that the appellant, since his release from immigration detention on 10 March 2020, has been living with JO, his former partner (who is JO’s mother) and his former partner’s daughter from a previous relationship (“AC”). AC was 14 at the time of the hearing.
-
The judge described the relationship between the appellant and his former partner as being “an on again and off again relationship”.
-
The judge found that the appellant is actively involved in caring for both JO and AC. With respect to the relationship between the appellant and AC, the judge found that the appellant is an important figure in AC’s life and that AC regards him as being as important in her life as her biological father (who lives in Zimbabwe).
-
The appellant relied on an independent social worker report by Ms Austin, that was prepared whilst the appellant was in prison (with the appellant participating by telephone). The judge identified inconsistencies in Ms Austin’s report, and found that she overstated the likely impact of the appellant’s deportation on the ability of the appellant’s former partner to provide for her children. The judge stated that she could place “some weight” on the report.
-
The judge addressed two distinct legal questions: firstly, whether the appellant has a derivative right to reside in the UK under regulation 16(5) of the Immigration (EEA) Regulations 2016 (“the 2016 Regulations”); and secondly, whether his removal would violate article 8 ECHR.
-
With respect to the 2016 Regulations, the appellant argued that he has a derivative right to reside in the UK pursuant to regulation 16(5) because he and his former partner are the joint primary carers of JO and JO would be unable to reside in the UK if they both left for an indefinite period.
-
The judge rejected this interpretation of regulation 16(5). Relying, inter alia, on Ruiz Zambrano v Office national de l’emploi (Case C-34/09), Chavez-Vilchez v Raad van bestuur van de Sociale verzekeringsbank (Case C-133/15) and Patel v Secretary of State for the Home Department [2019] UKSC 59, the judge found that the relevant question under regulation 16(5) was not whether JO would need to leave the UK if, hypothetically, both his parents were to do so, but rather whether he would in practice be compelled to leave the UK as a consequence of the appellant being removed. The judge found that JO has a stronger bond with his mother then with the appellant and that in the event of the appellant leaving the UK JO would remain with his mother in the UK. He therefore would not be compelled to leave the UK.
-
With respect to article 8 ECHR, the judge directed herself to apply the framework in section 117C of the Nationality Immigration and Asylum Act 2002 (“the 2002 Act”).
-
Applying section 117C(5), the judge found that both JO and AC are qualifying children and that the appellant had a genuine and subsisting relationship with them.
-
In paragraph 59 the judge directed herself that the test under section 117C(5), where a person subject to deportation has a genuine and subsisting relationship with a qualifying child, is whether the effect of deportation on that child is “unduly harsh”. In paragraphs 61 and 62 the judge again referred to the test of undue harshness, citing the relevant Supreme Court authority KO (Nigeria) & Ors v Secretary of State for the Home Department [2018] UKSC 53. In paragraph 71 the judge concluded that the effect on AC would be unduly harsh.
-
However, in paragraph 60 the judge stated that she needed to consider whether it was unreasonable to expect JO and AC to remain in the UK without the appellant, and in paragraph 66 a test of reasonableness was again referred to.
-
The judge found that the effect of the appellant’s deportation would not be unduly harsh for JO but would be for AC. The main reason the judge gave for finding that the unduly harsh threshold would be met in respect of AC was that she would suffer emotional harm from the cumulative effect of being separated from her biological father (who lives in Zimbabwe) and the appellant.
Grounds of Appeal
-
The respondent sought, and was granted, permission to appeal. The appellant was subsequently also granted permission to appeal.
-
The respondent’s grounds of appeal argue that the judge’s finding that the effect of the appellant’s deportation on AC would be unduly harsh was inadequately reasoned and did not come close to demonstrating the severe or bleak outcomes envisaged in established case law. Reliance was placed on LE (St Vincent And the Grenadines) v The Secretary of State for the Home Department [2020] EWCA Civ 505 and Secretary of State for the Home Department v PG (Jamaica) [2019] EWCA Civ 1213, as well as MK (Sierra Leone) v Secretary of State for the Home Department [2015] UKUT 223 (IAC), where it was said at paragraph 46:
“By way of self-direction, we are mindful that ‘unduly harsh’ does not equate with uncomfortable, inconvenient, undesirable or merely difficult. Rather, it poses a considerably more elevated threshold. ‘Harsh’ in this context, denotes something severe, or bleak. It is the antithesis of pleasant or comfortable. Furthermore, the addition of the adverb ‘unduly’ raises an already elevated standard still higher.”
-
It is also argued by the respondent that the judge failed to take into consideration the ability of AC’s mother to successfully look after her children on her own as she has done for the majority of their lives.
-
The appellant’s grounds argue that:
-
The judge, when evaluating undue harshness with respect to JO, failed to consider the difficulties JO’s mother would have in affording to visit the appellant in Nigeria, given that she would still need to travel to Zimbabwe to visit AC’s father; and failed to consider the impact on JO’s education.
-
The judge misapplied regulation 16 of the 2016 Regulations by failing to recognise that their meaning is clear: a person is entitled to a derivative right of residence where he is one of two parents sharing responsibility for a child and the effect of both those parents leaving the UK would be that the child would be unable to reside in the UK. The grounds contend that the CJEU case law relied upon by the judge is irrelevant as it represents the minimum level of protection required by article 20 TFEU and there is nothing preventing the 2016 Regulations from providing a more permissive and generous framework.
Regulation 16(5) of the 2016...
To continue reading
Request your trial