Upper Tribunal (Immigration and asylum chamber), 2021-08-05, HU/07184/2019
| Jurisdiction | UK Non-devolved |
| Date | 05 August 2021 |
| Published date | 20 August 2021 |
| Hearing Date | 13 July 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/07184/2019 |
Appeal Number: HU/07184/2019 (V)
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/07184/2019 (V)
THE IMMIGRATION ACTS
|
Heard at Field House via Microsoft Teams |
Decision & Reasons Promulgated |
|
On Tuesday 13 July 2021 |
On Thursday 05 August 2021 |
|
|
|
Before
UPPER TRIBUNAL JUDGE SMITH
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
-and-
JAR (COLOMBIA)
Respondent
Representation:
For the Appellant: Mr E Tufan, Senior Home Office Presenting Officer
For the Respondent: Mr D Chirico, Counsel instructed by Elder Rahimi solicitors
Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
An anonymity order was made by the First-tier Tribunal. As this appeal involves minor children, I consider it is appropriate to continue that order. 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, amongst others, to both parties. Failure to comply with this direction could lead to contempt of court proceedings.
DECISION AND REASONS
BACKGROUND
-
This is an appeal by the Secretary of State. For ease of reference, I refer to the parties as they were before the First-tier Tribunal. The Respondent appeals against the decision of First-tier Tribunal Judge Atreya promulgated on 15 April 2020 (“the Decision”). By the Decision, the Judge allowed the Appellant’s appeal against the Respondent’s decision dated 9 April 2019, refusing his human rights claim founded on Article 8 ECHR based on his family and private life. The claim was made in the context of a decision to deport the Appellant as a foreign national offender.
-
The Appellant is a citizen of Colombia. He says that he arrived in the UK with his mother on 31 July 1987. Whether or not that is correct, he came to the UK as a child. He is now aged forty-one years. He was granted indefinite leave to remain (“ILR”) on 25 July 1996 whilst still a child. He has lived in the UK for over thirty-two years.
-
The Appellant has a number of criminal convictions. The index offence is one of conspiracy to defraud in which the Appellant first became involved in 2016. He was convicted following a guilty plea on 24 July 2017 and sentenced to four years’ imprisonment.
-
The Appellant is in a relationship with a British citizen. They have two children now aged nine and two years respectively. The youngest child has a congenital cardiac problem and other physical health conditions and remains under the care of Great Ormond Street hospital. The Appellant’s partner has two adult children from a previous relationship. One of those children lives with the Appellant and his partner. He is on the autistic spectrum and is vulnerable. The Appellant also has two adult children of his own who live independently but with whom he retains contact.
-
The Judge found that the Appellant had lived half his life lawfully in the UK. She also found that the Appellant is socially and culturally integrated in the UK notwithstanding his criminal offending. She also accepted that there are very significant obstacles to integration in Colombia. In relation to the impact of deportation on the Appellant’s partner and children (including stepchildren), the Judge concluded that it would be unduly harsh for them to go with the Appellant to Colombia and that it would be unduly harsh for them to remain in the UK without him. The Judge recognised however that it was not sufficient for the Appellant to meet the two exceptions in the Immigration Rules (“the Rules”) and Section 117C Nationality, Immigration and Asylum Act 2002 (“Section 117C”). She referred to the need for the Appellant to show that there are very compelling circumstances over and above the exceptions which render his deportation disproportionate. She concluded however that, balancing the interference with the Appellant’s family and private life against the public interest, the decision to deport the Appellant was indeed disproportionate.
-
The Respondent sought permission to appeal from the First-tier Tribunal on five grounds which can be summarised as follows:
Ground one: the Judge erred by concluding that the best interests of the children were the most important consideration.
Ground two: the Judge erred by failing to have proper regard to the public interest in particular by failing to identify any circumstances over and above the exceptions which could be considered to be very compelling. Reference was made to various cases in support of the test said to be applicable.
Ground three: the Appellant’s partner and children had coped without the Appellant during his period of imprisonment and there was no evidence to show that the impact had been any more than that suffered by any partner or child separated from the other partner/parent. Again, various cases are cited.
Ground four: the Judge erred by placing weight on the Appellant’s rehabilitation in the absence of evidence that he had reformed (given the OASys assessment that the Appellant was at medium risk of non-violent reoffending).
Ground five: the Judge failed to provide adequate reasons for his conclusions particularly in relation to the finding that there would be very significant obstacles to the Appellant’s reintegration in Columbia.
-
Permission to appeal was refused by First-tier Tribunal Judge Lever on 10 May 2020 in the following terms so far as relevant:
“… 3. The Judge had noted that the Appellant had been in the UK for a considerable period of time and had settled status. He had previous convictions going back some years although no evidence the Respondent had sought to deport him then which may well have been an easier prospect. The judge had taken account of all the evidence. Inevitably in this case given the presence of children and their respective medical and emotional problems they featured heavily in the judges consideration of the evidence.
4. He set out in considerable detail the relevant law applicable and the case law relevant and recent in these types of cases. He quoted extensively from the case law and indeed referred to cases referred to by the Respondent in the grounds. It is clear that the judge was aware of the public interest and the very high threshold applicable in the Appellants case. Essentially the Respondents grounds amount to a disagreement with the judges findings which is hardly surprising as this is a deportation case. It cannot be said that every judge would have reached the same conclusion as this judge but nor can it be said that the judge was in error in his interpretation of the law and the principles within the case law. It is inevitably a judgement call and one made by the judge who heard all the evidence and saw witnesses giving evidence. His decision was not wrong in law nor unreasonable.
5. There was no arguable error of law in this case.”
-
The Respondent renewed her application for permission to appeal to this Tribunal, relying on the same grounds and making additional points in relation to grounds one and two taken together under the heading of material misdirection of law and ground three under the heading of inadequate reasons and/or failure to resolve a conflict of opinion.
-
Permission to appeal was granted by Upper Tribunal Judge Rimington on 18 August 2020 in the following terms:
“... All grounds are arguable – albeit the Judge set out the law at length between paragraphs 76 to 90, it is arguable the Judge failed to apply it or to give adequate reasoning for finding ‘very compelling circumstances.’”
Judge Rimington also gave directions that the error of law issue should be determined at a remote hearing absent objection from the parties. Neither party objected.
-
So it is that the hearing came before me. The hearing was conducted via Microsoft Teams. There were no technical issues affecting the conduct of the hearing.
-
The Appellant has filed an extensive rule 24 reply dated 25 September 2020. Unfortunately, although that was filed again (with a chronology) on the day before the hearing before me, Mr Tufan did not have it. I therefore invited Mr Chirico to deal with this in detail in his oral submissions to allow Mr Tufan to consider it and reply. In addition to those documents, I had before me a bundle of the core documents including the Respondent’s bundle and the Appellant’s bundle before the First-tier Tribunal,
-
The matter comes before me to determine whether the Decision contains an error of law and, if I so conclude, to either re-make the decision or remit the appeal to the First-tier Tribunal to do so. Following the parties’ submissions, I indicated that I found there to be no error of law in the Decision and upheld it. I indicated that I would provide my reasons in writing which I now turn to do.
DISCUSSION
-
Mr Tufan adopted the Respondent’s pleaded grounds. He submitted that, in relation to the exceptions, it was not clear how the Judge had found there to be very significant obstacles to the Appellant’s reintegration in Colombia. Although he accepted that two of the children suffer from physical and other health conditions, Mr Tufan...
To continue reading
Request your trial