Upper Tribunal (Immigration and asylum chamber), 2021-06-11, HU/12271/2019
| Jurisdiction | UK Non-devolved |
| Date | 11 June 2021 |
| Published date | 28 June 2021 |
| Hearing Date | 13 May 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/12271/2019 |
Appeal Number: HU/12271/2019
IAC-AH-SAR-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/12271/2019
THE IMMIGRATION ACTS
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Heard via Video Link at Field House |
Decision & Reasons Promulgated |
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On 13 May 2021 |
On 11 June 2021 |
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Before
UPPER TRIBUNAL JUDGE ALLEN
UPPER TRIBUNAL JUDGE KEBEDE
Between
the Secretary of State for the Home Department
Appellant
and
JMT
(anonymity direction MAde)
Respondent
Representation:
For the Appellant: Mr T Melvin, Senior Home Office Presenting Officer
For the Respondent: Mr O Sobowale instructed by IQ Law Chambers
DECISION AND REASONS
1. The Secretary of State appeals to the Upper Tribunal with permission against the decision of the First-tier Tribunal who allowed the appeal of the respondent JMT against the decision of the Secretary of State of 4 July 2019 refusing a human rights claim.
2. We shall hereafter to the Secretary of State as the respondent, as she was before the First-tier Judge, and to JMT as the appellant, as he was before the judge.
3. The appellant came to the United Kingdom, it seems, on 12 January 2011 with a Tier 2 visa and has remained subsequently, having been granted indefinite leave to remain on 18 November 2015.
4. On 28 February 2019 he was convicted at Cambridge Crown Court on two counts of sexual assault, intentionally touch female, no penetration and on 21 March 2019 he was sentenced at the Cambridge Crown Court to three months on the first count of sexual assault and twelve months on the second count for sexual assault, the first to run concurrently with the second. A restraining order was placed against him on 21 March 2019 valid for ten years and he was placed on the Sex Offenders Register for ten years. A deportation order was made on 2 July 2019.
5. The appellant’s human rights claim focused on his private and family life with his wife and son. He gave evidence before the judge in which he accepted that the offence for which he was convicted was very serious and he expressed remorse and sought the forgiveness of his victims. He was of previous good character and at the time he was sentenced he was aged 54.
6. The appellant’s wife gave evidence. She said that since the appellant had been away her younger son had been affected and was very distressed. Church members assisted in comforting him.
7. She also referred to the death some years earlier of her son’s elder brother. They had been very close and were very good friends and after he died her son became a loner and said he did not have anyone and was on his own. With regard to the effect on her son if the appeal was unsuccessful, she said that her son would have no one: having lost his brother he would now lose his father as well.
8. In his evidence the appellant’s son adopted his witness statement and referred to the schoolwork he had and how his programme for work and examinations went.
9. As the judge properly identified at paragraph 21 of his decision, the essential question in this case was whether the effect of the appellant’s removal would be unduly harsh on his son. He found that the appellant’s son had been in the United Kingdom for more than seven years. He observed that whether it would be unduly harsh for his son to remain in the United Kingdom if the appellant were removed involved looking for a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation of a parent.
10. The judge considered whether it would be unduly harsh for the appellant’s son to live in India and found that in reality there was no prospect of the son or the appellant’s wife going to live in India with the appellant. The son was focusing on studying for his GCSEs which he was due to sit the following May (the appeal was heard on 29 October 2019). Plainly his mother would have to remain with him to enable him to sit those examinations given the overall circumstances.
11. The judge referred to the guidance in the authorities such as PG (Jamaica) [2019] EWCA Civ 1213 and KO (Nigeria) [2018] UKSC 53. It was clear that a certain level of family disruption was inevitable when a foreign criminal was deported, this having been decided by Parliament, and it was necessary for Tribunals to look for something beyond that. It was clear that in any case great distress might well be suffered as to the effect of deportation and the lives of those affected would be in a number of ways made more difficult.
12. The court considered in PG (Jamaica) whether there was anything which elevated a case above the norm. It was noted that many parents of teenage children were confronted with difficulties and upsetting events of one sort or another and had to face one or more of their children going through a difficult period for one reason or another, and the fact that a parent who was a foreign criminal would no longer be in a position to assist in such circumstances could not of itself mean that the effects of deportation were unduly harsh on his partner or children. Nor were the difficulties which would inevitably be faced increased as they were by the laudable ongoing efforts referred to in that case and the improvement of earning capacity elevate the case above the commonplace so far as the effects of deportation were concerned. Emotional and behavioural fallout reflected the commonplace nature found to exist in that case.
13. The judge found that the effect of deportation of the appellant on his son went beyond the commonplace. Some five years ago his elder brother died. His mother in evidence had described the effect on him given the closeness of their relationship and also the effect upon the relationship between the appellant and his son. The son faced the prospect of losing his father as well and plainly in the ordinary course of events the impact on the son would be harsh.
14. The judge found that in light of the tragedy which had befallen his elder brother and the consequences of that tragedy for him, the effect of the appellant’s deportation upon his son would be unduly harsh. The loss of his elder brother in bringing him closer to his father would entail greater distress in separation than the level of distress which would arise following removal of his father had he not lost his elder brother. The level of distress would substantially exceed that which could be characterised as commonplace or that which would be anticipated as the ordinary consequence of removal in the context of family life. The judge noted the appellant’s wife’s evidence concerning her son’s approach to his education which was in effect as to whether it was worthwhile to be concerned with it. They had all been devastated when the elder son had died and the appellant’s wife believed they had become overprotective of the remaining son. The appellant spent a lot of time with him and they were very close. The son had already lost his brother and now he felt that he had also lost his father. The son had described feeling demotivated since his father had been in prison and felt that going to school without having his father at home was pointless. He described his father as his best friend and confidante. He described being dependent on his father and needing him to support him. As a consequence the judge concluded that the requirements of the Immigration Rules had been met.
15. He went on to consider whether there would be a breach of Article 8 outside the Rules. He set out the Razgar [2004] INLR 349 criteria and the approach in Huang [2007] UKHL 11. As regards the issue of proportionality the judge recognised the importance of the maintenance of effective immigration control. The appellant could speak English and was capable of earning his living. He accepted the immigration history set out by the respondent in applying the concepts of precariousness and unlawfulness. He noted that the deportation of foreign criminals is in the public interest and that the more serious the offence committed by a foreign criminal the greater is the public interest in the deportation of the criminal. Exception 2 pursuant to section 117C of the 2002 Act applied where the appellant had a genuine and subsisting parental relationship with a qualifying child and the effect of the deportation on the child would be unduly harsh. He had found that the child was a qualifying child and that the effect would be unduly harsh.
16. In considering the public interest he recognised the need for deterrence and the need to express public revulsion. He noted the sentencing remarks of the judge and how the offending had been described by the respondent. He accepted the assessment of risk. He applied section 55 and found that it was unquestionably in the best interests of the son that he lived with both parents. The respondent had accepted in the refusal letter that it would be unduly harsh for the child to live in India at the current time. The judge found that the public interest was outweighed and the appeal fell to be allowed.
17. The Secretary of State sought and was granted permission to appeal on the basis that the judge had misdirected himself in law, failed to take into account material matters and failed to provide adequate reasons.
18. Mr Melvin developed...
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