Upper Tribunal (Immigration and asylum chamber), 2021-07-27, HU/19811/2018
| Jurisdiction | UK Non-devolved |
| Date | 27 July 2021 |
| Published date | 12 August 2021 |
| Hearing Date | 18 May 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/19811/2018 |
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/19811/2018
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On Tuesday, 18 May 2021 |
On Tuesday, 27 July 2021 |
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Before
UPPER TRIBUNAL JUDGE McWILLIAM
DEPUTY UPPER TRIBUNAL JUDGE JOLLIFFE
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
LH
(ANONYMITY DIRECTION MADE)
Respondent
Representation:
For the Appellant: Mr E Tufan, Home Office Presenting Officer
For the Respondent: Mr C Lam, Counsel instructed by David Tang & Company
DECISION AND REASONS
Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
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. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings
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The Appellant is a citizen of China. His date of birth is 28 November 1975. He has been anonymised in these proceedings by the First-tier Tribunal.1 There is no reason for us to interfere with this. The Appellant lives in the United Kingdom with his wife, XW. She is a citizen of China. She has a derivative right to reside here as the mother of their two British citizen children (G and C), born on 15 January 2011 and 15 March 2012.
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The Appellant claims to have arrived in the UK in April 1997. He made a claim for asylum in May 1997. The application was refused by the Secretary of State on 16 July 1997. His appeal against that decision was dismissed by a Special Adjudicator in 1998. On 16 December 2010 the Appellant was granted ILR.
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On 30 October 2015 the Appellant was convicted of two counts of employing adults subject to immigration control. XW was a co-defendant in the proceedings. On 9 December 2015 they were sentenced to thirteen months’ imprisonment on each count to run concurrently. The Secretary of State served a decision to deport the Appellant (dated 18 January 2016). The Appellant made representations. In a decision dated 22 September 2018 the Respondent refused the Appellant’s human rights claim. A deportation order was signed on 20 September 2018.
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The Appellant appealed against the decision of 22 September 2018. His appeal was allowed by the First-tier Tribunal (Judge Wilding) in a decision promulgated on 9 September 2019. Upper Tribunal Judge Mandalia set aside the decision of the First-tier Tribunal to allow the Appellant’s appeal against the Secretary of State’s decision to deport the Appellant following his criminal conduct on Article 8 grounds. His decision (“the error of law decision”) is appended to this document (Appendix A). The appeal came before us for a rehearing.
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On 14 February 2016 the Appellant and XW made an application for a derivative residence card as primary carers of a British citizen who was resident in the United Kingdom (their two children). The applications were refused by the Secretary of State. The Appellant and his wife appealed. Their appeals were dismissed. However, in respect of XW, the Secretary of State in a letter of 22 September 2018, changed her position. She stated: -
“Having taking account of your criminal conduct to date, the Secretary of State had decided that your deportation is conducive to the public good. However, the Secretary of State will not be taking steps to deport you at the present time. This is because there is currently a legal barrier which prevents you from being deported. You are the primary carer for two British citizens and children. Deporting you and your husband, LH, together would force the children to leave the UK and this would be in contravention of the European Economic Area (EEA) Regulations. You are no longer required to report as previously required.”
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In the same letter the Appellant’s wife was informed that she remains liable to deportation under the provisions of the Immigration Act 1971 and could face deportation action if she comes to the adverse attention of the Respondent.
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Upper Tribunal Judge Mandalia concluded that Judge Wilding made a material error of law. He observed that it was unfortunate that the First-tier Tribunal had not been provided with a copy of the letter dated 22 September 2018 from the Secretary of State to the Appellant’s wife. He was not made aware of it. The First-tier Tribunal’s consideration of s.117C(5) of the 2002 Act proceeded on the basis of a mistake as to fact that the Appellant’s wife was not entitled to a derivative residence card as the parent of dependent children under the EEA Regulations. Upper Tribunal Judge Mandalia found that the mistake “played a material part in the judge’s reasoning”. He referred to the following findings of the First tier Tribunal.
“29. An additional fact which leads from the partner’s lack of status is the fact that the Appellant’s removal could require his children to leave the UK in contravention of the principles in Zambrano, this is presumably why the Respondent’s guidance emphasises that the decision should not be taken if the partner does not have leave to remain. The Respondent has not sought to clarify her status prior to the hearing and save for Ms Ololade’s concession that she would not be removed there is nothing to confirm her lawful status. It is also of note that the appeal before the First-tier Tribunal in January 2018 of the Appellant’s partner was dismissed, I was told by Mr Lam, on the basis of the Appellant being present in the UK and able to care for the children.
30. The uncertainty as to the partner’s status in conjunction with the Respondent’s own guidance, as well as the issue as to the Zambrano lends further weight to the consideration as to whether there are unduly harsh circumstances, in my view there are such circumstances. Should the Appellant be removed to China then the two children will be left with their mother who has no immigration status, contrary to the Respondent’s own guidance. However, it is more than that, even if Ms Ololade’s submission that she will not be removed, the Appellant’s partner could not work, she cannot provide therefore for the household. In my judgment, weighing all of the above into the equation, the circumstances which the Appellant’s deportation would lead to would be unduly harsh.”
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Upper Tribunal Judge Mandalia stated as follows: -
“30. Where there is a mistake as to fact, a succesful appeal in such circumstances is not dependent on the demonstration of some failing on the part of the FtT. An error of law may be found to have occurred in circumstances where some material evidence, through no fault of the FtT, was not considered, with resulting unfairness. I am satisfied that that is what has happened here, and the decision of the First-tier Tribunal must be set aside.
31. As to disposal, the appropriate course is for the appeal to remain in the Upper Tribunal. I preserve the finding made by Judge Wilding, at [23], that it would be unduly harsh for the children to go to China. I direct that:
(a) The Appellant shall file and serve any further evidence that he seeks to rely upon, within 21 days of this decision being sent to the Appellant.
(b) the matter should be listed for a resumed hearing on the first available date after 28 days.”
The Decision of the First-tier Tribunal
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Judge Wilding found that there were no credibility issues and no dispute as to the factual circumstances. He said that both witnesses (the Appellant and his wife) gave evidence in a clear manner and their evidence was credible.
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Judge Wilding considered the best interests of the Appellant’s two children. The children were born here and attend primary school. The judge recorded the evidence that they have relationships with teachers and children alike and that they understand and speak some Chinese, however, they are not fluent and often answer in English. The children have never lived in China and last visited there in 2015. They have grandparents there and extended family. Both children are in good health and there were no concerns in that regard.
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Both children have lived under Social Services care before whilst their parents were in prison, however, there were no issues in relation to their care upon their parents’ release. They were promptly returned to them. Judge Wilding accepted the evidence and concluded that the family is “clearly in a living and stable family unit”. The judge found “without hesitation” that the children’s best interests are for them to remain in the UK with both of their parents (at paragraph 17).
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Judge Wilding said as follows: -
“Turning to the question of separation I consider this a finely balanced case. I...
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