Upper Tribunal (Immigration and asylum chamber), 2017-02-01, HU/00110/2015
| Jurisdiction | UK Non-devolved |
| Date | 01 February 2017 |
| Published date | 10 September 2021 |
| Hearing Date | 24 January 2017 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/00110/2015 |
Appeal Number: HU/00110/2015
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/00110/2015
THE IMMIGRATION ACTS
|
Heard at Newport (Columbus House) |
Decision & Reasons Promulgated |
|
On 24 January 2017 |
On 1 February 2017 |
Before
UPPER TRIBUNAL JUDGE GRUBB
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
O J E
(ANONYMITY DIRECTION MADE)
Respondent
Representation:
For the Appellant: Mr I Richards, Senior Home Office Presenting Officer
For the Respondent: No representative
DECISION AND REASONS
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Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) I make an anonymity order. Unless the Upper Tribunal or Court directs otherwise, no report of these proceedings shall directly or indirectly identify the respondent (OJE). This direction applies to both the appellant and to the respondent and a failure to comply with this direction could lead to Contempt of Court proceedings.
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Although this is an appeal by the Secretary of State, for convenience I will refer to the parties as they appeared before the First-tier Tribunal.
Background
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The appellant is a citizen of Nigeria who was born in the UK on 9 December 1988. He has lived his entire life in the UK. His parents are Nigerian and they have lived in the UK since the 1980s.
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The appellant’s mother, together with the appellant and his siblings as dependents, were subject to a deportation order which was unsuccessfully appealed against in May 1998. Nothing appears to have happened thereafter to remove the family.
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On 10 August 1999, the appellant’s mother applied for indefinite leave to remain for herself, her children and her partner. On 6 December 2002, the Secretary of State granted the appellant and his family ILR.
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The appellant has been convicted of criminal offences on a number of occasions.
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In March 2006 he pleaded guilty at the Ipswich Crown Court to a number of offences including the possession of Class A drugs (crack cocaine) with intent to supply and two offences concerning the possession of weapons. He was sentenced to a two-year Detention and Training Order.
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On 8 September 2010, at the Central Kent Magistrates’ Court, the appellant was convicted of possession of a Class A controlled drug, namely crack cocaine and failure to surrender to custody and was sentenced to a fine of £100.
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On 9 September 2010 at the South-West Essex Magistrates’ Court he was again convicted of possession of a Class A controlled drug, namely heroin and failure to surrender to custody and was fined £200.
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On 2 March 2011, the appellant was sentenced, following a guilty plea, at the Maidstone Crown Court on five counts: three counts of supply either of heroin or crack cocaine and two counts of possession of heroin or crack cocaine with intent to supply. He was sentenced to a period of four and a half years’ imprisonment concurrently on those accounts.
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It would appear that the appellant was released from prison on 8 February 2013. Shortly thereafter, on 10 April 2013 the appellant was arrested whilst driving a car and found to be in possession of a small amount of cocaine. On 12 April 2013, at the North London Magistrates’ Court he was convicted, in relation to this last incident, of possessing a Class A controlled drug, namely cocaine and fined £100. He was recalled to prison for breach of his licence conditions and subsequently released in November 2013.
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On 10 November 2014, the appellant was notified that he was liable to be deported pursuant to the automatic deportation provisions in the UK Borders Act 2007 and invited to make representation why he should not be deported.
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On 25 November 2014, the appellant returned the completed questionnaire. The representations relied upon the fact that the appellant had been born in the UK and had lived his whole life in the UK having never travelled abroad and visited Nigeria.
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On 29 January 2015, the Secretary of State, treating the appellant’s representation as a human rights claim, refused his claim based upon Art 8 of the ECHR.
The Appeal to the First-tier Tribunal
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The appellant appealed to the First-tier Tribunal.
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At that appeal hearing, the appellant was unrepresented. He continued to rely upon the fact that he was born in the UK and had not left the UK. He also claimed that he had no contact with any relatives in Nigeria. Although his mother had siblings there, he had never met them. In addition, he relied upon his relationship with a British citizen, “CH”. Their relationship had begun following his release from prison in November 2013. She has two children, a boy (“S”) born on 28 August 2009 and a girl (“T”) born on 29 April 2012. In addition, the appellant and CH have a daughter (“N”) born on 27 February 2015.
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Judge R E Barrowclough allowed the appellant’s appeal under Art 8. Although the judge accepted that the appellant did not fall within Exceptions 1 and 2 in s.117C(4) and (5) of the Nationality, Immigration and Asylum Act 2002 (“NIA Act 2002”), Judge Barrowclough found, applying s.117C(6), that there were “very compelling circumstances” to outweigh the public interest in the appellant’s deportation as a foreign criminal.
The Appeal to the Upper Tribunal
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The Secretary of State sought permission to appeal to the Upper Tribunal on a number of grounds.
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First, the judge had wrongly applied s.117C(6). He was wrong to find that there were “very compelling circumstances over and above” those recognised in Exceptions 1 and 2 when the judge had found that neither Exception 1 nor Exception 2 was satisfied.
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Secondly, the judge’s factual findings in the appellant’s favour were contrary to the judge’s finding that the appellant was not “a particularly convincing or reliable witness”.
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Thirdly, the appellant’s circumstances could not amount to “very compelling circumstances” over and above those described in Exceptions 1 and 2 in s.117C(4) and (5).
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Finally, the judge failed to have proper regard to the three facets of the public interest set out in OH (Serbia) v SSHD [2008] EWCA Civ 694 and to the risk that the appellant would re-offend in the future.
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On 24 March 2016, the First-tier Tribunal (Judge Colyer) granted the Secretary of State permission to appeal.
The Submissions
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Mr Richards, who represented the Secretary of State relied on the grounds. He placed emphasis on the fact that the judge had found that the appellant did not come within Exception 1 in s.117C(4) based on his private life as he had not been lawfully resident in the UK for most of his life. Further, the judge had found that the appellant did not come within Exception 2 in s.117C(5) dealing with the appellant’s family life in the UK with his partner and children on the basis that it had not been established that it would be “unduly harsh” if he were deported. Mr Richards submitted that having found that neither exception applied, it would only be very exceptionally that it could be established that there were “very compelling circumstances” over and above those recognised in the exceptions. Mr Richards submitted that the judge failed properly to consider the “over and above” element and had thereby misdirected himself in law.
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Further, Mr Richards submitted that the judge was wrong to find that there were “very compelling circumstances” and, in particular, he had taken into account (at [17] and [19]) that it would be artificial to treat the appellant as a “foreign criminal” because he had been in the UK all his life. Mr Richards submitted that the appellant fell within the definition of “foreign criminal” in s.117D(2) of the NIA Act 2002 and there was nothing artificial in treating him as falling within the category as defined by statute. He submitted that the determination was safe and should be set aside.
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The appellant, who was not represented, reminded me of his circumstances and in particular that he had lived in the UK his entire life and of his family life with his partner, CH and her two children and their child N.
Discussion
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There is no doubt that the appellant, as a result of his conviction for drugs offences in 2011, is a “foreign criminal” as defined in s.117D(2) of the NIA Act 2002 as he is not a British citizen and has been sentenced to a period of imprisonment of at least twelve months. His deportation, therefore, can only be resisted, so far as relevant to him, if he is able to establish that his deportation would be contrary to the ECHR, in particular Art 8 (see s.33(2)(a) of the UK Borders Act 2007).
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The relevant Immigration Rule (in HC 395 as amended) is para 398 which provides that:
“Where a person claims that their deportation would be contrary to the UK’s obligations under Article 8 of the Human Rights Convention, and
(a) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years; ….
the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies...
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