Upper Tribunal (Immigration and asylum chamber), 2021-08-12, PA/04079/2019
| Jurisdiction | UK Non-devolved |
| Date | 12 August 2021 |
| Published date | 31 August 2021 |
| Hearing Date | 20 July 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | PA/04079/2019 |
Appeal Number: PA/04079/2019
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04079/2019
THE IMMIGRATION ACTS
|
Heard at Manchester (Remote) |
Decision & Reasons Promulgated |
|
On 20 July 2021 |
On 12 August 2021 |
Before
UPPER TRIBUNAL JUDGE HANSON
Between
IR
(Anonymity direction made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Hodson instructed by Elder Rahimi Solicitors.
For the Respondent: Mr Tan a Senior Home Office Presenting Officer.
DECISION AND REASONS
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The appellant, a citizen of Iraq born on 10 August 1987 appeals a decision of the Secretary of State, who refused his application for leave to remain in the United Kingdom on protection and human rights grounds, as an exception to the order for his deportation from the United Kingdom.
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On 24th July 2017 at Leicester Crown Court the appellant was convicted on two counts of conceal/disguise/convert/transfer/remove criminal property; acquire/use/possess criminal property and two counts of knowingly concerned in the fraudulent evasion of a prohibition/provision re: counterfeit goods for which, on the same occasion, he was sentenced to 41 months imprisonment on three counts to be served concurrently, and 15 months imprisonment for two counts to run concurrently. A total of three years and five months imprisonment.
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The appellant was also advised that section 72 of the Nationality, Immigration and Asylum Act 2002 applied.
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The judge of the First-tier Tribunal records at [8] of that determination, promulgated on 20 January 2020, that the asylum claim was not being proceeded with and that the only issue was the appellant’s human rights claim.
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The First-tier Tribunal Judge found that family life existed between the appellant, his wife and three children. The three children were found to be qualifying children as they are British citizens and found that the appellant’s deportation would result in unduly harsh consequences for the children, and that pursuant to section 117C(3) of the 2002 Act the public interest did not require the appellant’s deportation.
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The Secretary of State was granted permission to appeal. In a decision dated 6 July 2020, decided pursuant to rule 34 of the Upper Tribunal’s procedure rules, Upper Tribunal Judge Pickup set that decision aside on the basis it was found the First-tier Tribunal had failed to apply the correct test and maintain a balanced approach to resolving the issue of ‘unduly harsh’ such that the decision is fatally undermined and cannot stand.
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The matter was relisted before Judge Pickup on 16 April 2021, who adjourned the hearing and recused himself, the explanation for which course of action is set out at [10 – 12] of the adjournment notice in the following terms:
10. At the outset of the hearing before me, Mr Hodson indicated that the challenge to the error of law decision remained. The respondent does not accept that there was an error of law in the decision of the First-tier Tribunal, and he intended to invite the Upper Tribunal to revisit the error of law decision in making error of law decisions on the papers without an oral hearing. Mr McVeety also indicated that he had instructions from the Home Office to raise this as a preliminary issue. Mr Hodson made application that I should recuse myself from the matter in order that the application to reopen the error of law decision could be made before a different judge.
11. The parties were reminded that the jurisdiction to depart from or vary the error of law decision is to be exercised only in very exceptional cases. However, having considered the submissions of Mr Hodson and noting that it was unopposed by Mr McVeety, I considered that it is arguable. There are such very exceptional circumstances that I should accede to the application to adjourn this matter to enable the respondent to make submissions to a different Upper Tribunal Judge that the error of law decision issued on 7.7.20 should be remade in an oral hearing following the opportunity for both parties to make written and oral submissions on the error of law issue. Whilst there is no requirement that the application to revisit the error of law decision must be decided by a different judge, I consider that it would be consistent with the Tribunal’s overriding objectives to deal with cases fairly and justly to enable such a course of action.
12. The remaking of the decision in the appeal should proceed immediately thereafter. I have issued directions below to enable the further management of this case.
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Directions were given by Judge Pickup, the third of which is in the following terms: “Any application to reopen or remake the error of law decision must be supported by written submissions to be lodged and served no later than seven days before the next hearing”.
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The issue of the scope of the hearing was raised with the parties at the outset, during which Mr Hodson stated he was not aware if the direction had been complied with and any application made. A reading of the file indicates it has not. Further discussion resulted in a pragmatic approach being taken that Judge Pickup’s error of law finding would stand with the Upper Tribunal going on to rehear the appeal with a view to substituting a decision to either allow or dismiss the appeal.
The appellants case
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In his latest witness statement dated 8 April 2021, the appellant confirms he remains living in the family home in Nottingham with his wife, LR, their daughter, DK born on 5 April 2019 and his wife’s other two children LH aged 11 and ZS, aged 17.
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The appellant refers to the family spending time together during the Covid lockdown and his wife having been furloughed and spending much of her time with DK, although he states he does his bit too.
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LH starts her Secondary School in September 2021 and ZS, who is older, is more independent, having a part-time job as a carer, finishing her A-levels in 2021 and commencing an undergraduate course of study at Derby University in September 2021 to which she will travel from the family home in Nottingham.
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In 2020 LR took DK to Iraq to enable the appellant’s mother to meet her new grand daughter for the first time. The appellant records that LR would call him constantly saying she did not know what she was supposed to do or how she should behave in certain circumstances and did not understand the language of the family. The appellant claims that the trip underlined to LR that she could never live in Iraq long-term as the cultural differences were just too great especially for LH who would be faced with having to cope with a change of education, language and culture at her age, which the appellant fully accepts is the right decision for the family.
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The appellant recognises that the issue is that if he is deported to Iraq the family will be split. The appellant in his statement recognises that the relevant question is whether deporting him to Iraq would result in unduly harsh consequences on LR, DK and LH. The appellant’s case is that such consequences will arise.
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The appellant also notes that since his appeal before the First-tier Tribunal he has paid off the full amount of the Confiscation Order of £19,186.14; ordered following his conviction for money laundering by 15 October 2019, with the assistance of an uncle and friend who he claims lent him the outstanding amount of £11,312.32 which included £829.82 interest. The appellant states those friends would also be ready and able to offer him paid employment should he be allowed to remain with permission to work, which will enable him to remain with and support his family, emotionally and financially, and to make a positive and law-abiding contribution to the future.
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Mr Hodson relies upon his skeleton argument dated 14 April 2021, which sets out the factual background to the appeal, the immigration decision and grounds of appeal, the relevant legal framework and at [4] his submissions in support of the appellant’s appeal which are in the following terms:
4. SUBMISSIONS
4.1 The first issue to be decided is whether the appellant is liable to deportation under the Immigration Act 1971 as subject to the provisions of the UK Borders Act 2007. The appellant is not a British citizen. He has been convicted to a period of imprisonment meeting Condition 1 of s.32(2) of the 2007 Act and hence his deportation is thereby said by the Secretary of State to be conducive to the public good in accordance with s.32(4) of the 2007 Act. It is therefore accepted that the appellant is at least liable to deportation under section 3 (5) (a) of the Immigration Act 1971.
4.2 The next issue is whether the appellant’s removal would breach the Refugee Convention or the European Convention on Human Rights. A person may not be removed if to do so...
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