Upper Tribunal (Immigration and asylum chamber), 2021-06-04, HU/17031/2019
| Jurisdiction | UK Non-devolved |
| Date | 04 June 2021 |
| Published date | 21 June 2021 |
| Hearing Date | 07 April 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/17031/2019 |
IAC-BH-PMP-V2
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/17031/2019
THE IMMIGRATION ACTS
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Heard by Skype for business |
Decision & Reasons Promulgated |
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On the 7 April 2021 |
On the 4 June 2021 |
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Before
UPPER TRIBUNAL JUDGE REEDS
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
AND
YANNICK NTANTU
(NO Anonymity direCTION MADE)
Respondent
Representation:
For the Appellant: Mr Whitwell, Senior Presenting Officer
For the Respondent: Ms Logan, Counsel instructed on behalf of the respondent, Mr Ntantu.
DECISION AND REASONS
Introduction:
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On 17 October 2019 the respondent made an order that the appellant is to be deported from the United Kingdom (‘UK’), following his criminal convictions as it was considered that his presence in the UK was not conducive to the public good. The respondent refused the appellant’s human rights claim in a decision letter dated 2 October 2019.
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The appellant, a citizen of South Africa, appealed this decision to the First-tier Tribunal (Judge Cox) (hereinafter referred to as the “FtTJ”). In a decision sent on 5 November 2020, the FtTJ allowed his appeal on human rights grounds, and the Secretary of State has now appealed, with permission, to the Upper Tribunal.
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Whilst this is the appeal brought on behalf of the Secretary of State, for sake of convenience I intend to refer to the parties as they were before the FtT.
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The FtT did not make an anonymity order and no grounds have been raised by the appellant in support of such an order during these proceedings.
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The hearing took place on 7 April 2021, by means of Skype for Business which has been consented to and not objected to by the parties. A face-to-face hearing was not held because it was not practicable and both parties agreed that all issues could be determined in a remote hearing. I conducted the hearing with the parties’ advocates. No technical problems encountered during the hearing and I am satisfied both advocates were able to make their respective cases by the chosen means.
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I am grateful to Mr Whitwell and Ms Logan for their detailed and clear oral submissions.
Background:
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The appellant’s immigration history is summarised in the decision of the FtTJ at paragraphs 1-10.
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The appellant arrived in the UK on 12 April 2001 with his mother and two other siblings. There is no dispute that he was aged 4 at the date of his arrival. His mother applied for asylum with the appellant and his siblings recorded as her dependents. The application was refused, and her appeal was dismissed in November 2001. Her appeal rights became exhausted on 3 January 2002.
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It is recorded that she then applied for leave to remain on human rights grounds again with the appellant and his siblings listed as her dependents. That application was refused with an in country right of appeal and in a decision dated 9 March 2006, her appeal was dismissed. She became appeal rights exhausted for a second time on 2 May 2008.
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On 10 November 2010, the appellant was granted indefinite leave to remain in the UK along with his mother and siblings.
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On 21 June 2017, the appellant was convicted of supplying class A drugs and on 12 October 2017 he was sentenced to 26 months detention in a young offender’s institution for each offence, to be served concurrently.
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In light of his conviction, a decision to deport him was issued on 17 October 2017. This was responded to by the appellant in July and August 2018 where he made a protection claim and a human rights claim. A decision was made on 2 October 2019 to refuse a protection and human rights claim.
The decision of the Secretary of State dated 2 October 2019:
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The decision letter is a lengthy document extending to 20 pages.
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Having set out the appellant’s immigration history, the respondent set out the reasons for deportation namely that on 21 June 2017 he was convicted two offences of supplying a controlled drug of class A and was sentenced on 12 October 2017 to 26 months detention in a young offender’s institution for each offence to be served concurrently. It is right to observe that the respondent considered the conviction in the light of the claim made for asylum and section 72 of the NIAA 2002.
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The sentencing remarks of the judge are set out at paragraph [24] and at [70] of the FtTJ’s decision. The respondent considered that objectively any crime which resulted in a sentence of 26 months is considered a serious crime as reflected in the sentencing remarks. Having reached that conclusion, it was considered that the appellant had failed to rebut the statutory presumptions.
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The respondent addressed the submissions made in respect of the protection claim. It is right to note that the appellant did not pursue his protection claim before the FtTJ.
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In respect of his article 8 claim the respondent set out the nature of his claim which related to his relationship with his partner. The respondent considered paragraph 399 (b). It was not accepted that his partner was a British citizen or settled in the UK because the appellant had not provided evidence of her citizenship or settlement. There was no evidence either of her UK residency. It was further not accepted that it was a genuine or subsisting relationship in light of the lack of evidence which had been provided.
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In the alternative, assuming that the relationship was genuine and subsisting, it was formed when he was in the UK lawfully and his immigration status had not been precarious this was because he had been granted indefinite leave to remain in the UK in 2010 and that he had met his partner in 2015. However, it was not accepted that it would be unduly harsh for her to live in South Africa if she chose to do so. Little was known about her including her age, nationality, or other personal circumstances that there is no reason to believe that she could not live with the appellant in South Africa. Furthermore, it would not be unduly harsh for her to remain in the UK even though he was to be deported. This is because no reason to be provided as to why it would be unduly harsh for her to remain in the UK whilst he was deported to South Africa.
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Consideration was given to paragraph 399A in the context of the appellant’s private life.
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It was not accepted that he had been lawfully resident in the UK for most of his life; this was because he had arrived in the UK on 12 April 2001 at the age of four and since then had lived in the UK continuously for 17 years in total. However out of the 17 years, only seven years and eight months had been spent under “lawful residence”.
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It was not accepted that he was socially and culturally integrated in the UK. Whilst he lived in the UK since the age of four, he had not made any positive contributions to society and had shown a blatant disregard of the law of the UK having committed a serious offence of supplying drugs. Reference was made to the sentencing remarks.
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It is accepted that there would be some significant obstacles to his integration into the country to which it was proposed to deport him; this is because he had lived in the UK since he was four. Having left South Africa at such a young age, it was considered that he may no longer have a recollection of his time in South Africa. It was not known if he had any residual ties back in that country through his mother or father’s ties. He is now a young man who would require a degree of guidance on return to South Africa. However, it was not considered that the significant obstacles were insurmountable and that with the help of his mother and other relatives in the UK and possibly abroad, he could successfully reintegrate into life in South Africa. Family members could visit him in South Africa and help him settle down there. Any friendships in the UK that had been established could be maintained through modern means of communication.
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Whilst it was accepted that deportation would have some interference in his private life, his removal engaged the public interest due to his offending and the interest of preventing further offending. It was not accepted that he met the requirements of the private life Exceptions against deportation.
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Under the heading “very compelling circumstances”, the respondent noted that his deportation was conducive to the public good and there was a “significant public interest” because he had been convicted of an offence for which he had been sentenced to a period of 26 months for drug offences and thus in order to outweigh the very significant public interest in deporting him, he would need to provide evidence of a very strong article 8 claim over and above the circumstances described in the Exceptions to deportation.
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In conclusion, the respondent considered that his deportation would not breach the UK’s obligations under Article 8 of the ECHR and the public interest in deporting him outweighed his right to a private and family life.
The Decision of the First-tier Tribunal:
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The appeal came before the FtTJ on 30 September 2020. The FtTJ heard oral evidence from the appellant, his partner, mother, and brother. The FtTJ also had...
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