Upper Tribunal (Immigration and asylum chamber), 2021-08-05, HU/05092/2020

JurisdictionUK Non-devolved
Date05 August 2021
Published date20 August 2021
Hearing Date06 July 2021
StatusUnreported
CourtUpper Tribunal (Immigration and Asylum Chamber)
Appeal NumberHU/05092/2020

Appeal Number: HU/05092/2020 (V)


Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: HU/05092/2020 (v)



THE IMMIGRATION ACTS



Heard at Cardiff Civil Justice Centre

Remotely by Microsoft Teams

Decision & Reasons Promulgated

On 6 July 2021

On 5 August 2021




Before


UPPER TRIBUNAL JUDGE GRUBB



Between


THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and


SAMI SALMAN

Respondent



Representation:

For the Appellant: Mr A Tan, Senior Home Office Presenting Officer

For the Respondent: Mr J Holt instructed by TMC Solicitors Ltd



DECISION AND REASONS

  1. 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: Sami Salman (the appellant) and the Secretary of State for the Home Department (the respondent).

Introduction

  1. The appellant is a citizen of Bahrain who was born on 13 June 1966.

  2. The appellant claims that he arrived in the UK in 1982, when he was 16 years of age. On 27 June 1990, the appellant was granted Indefinite Leave to Remain (ILR). He claims to have lived in the UK ever since but it is clear he also made a visit or visits to Ireland at times, claiming he last returned to the UK in 2018.

  3. The appellant had a brief relationship with an Irish citizen and, as a result of that relationship, on 5 May 1989 the appellant’s daughter, Diane (“D”) was born in Ireland. He was granted custody of D on 7 April 1990 and returned to the UK with her where he was awarded custody of her by the court in July 1992. D was subsequently registered as a British citizen.

  4. During this time, the appellant had a relationship with a British citizen, Grace Cunningham (“G”). They married in Bahrain in 2000. On 14 May 2010, the appellant’s son, Rashid (“R”) was born in the UK.

  5. At some point, the appellant’s relationship with G broke down. A non-molestation order was made by the Bristol Family Court on 28 March 2019 in relation to G prohibiting from contacting her.

  6. On 8 August 2019, at the Bristol Magistrates’ Court the appellant was convicted of breaching that non-molestation order and also of sending threatening and abusive communications to his daughter, D contrary to s.4(1) and (4) of the Protection for Harassment Act 1997. On 17 September 2019, in relation to each offence the appellant was sentenced to six months’ imprisonment to run consecutively. As part of his sentence, the Bristol Magistrates’ Court also made a restraining order against him valid until 16 September 2022 preventing him from contacting G and D.

  7. On 18 October 2019, the appellant’s appeal against those convictions was dismissed by the Bristol Crown Court.

  8. On 29 October 2019, the respondent made a decision to make a deportation order against the appellant under s.5(1) of the Immigration Act 1971 (“the IA 1971”) on the based of those convictions and that his deportation was conducive to the public good under s.3(5)(a) of the IA 1971.

  9. On 14 November 2019, the appellant made a human rights claim based upon his private and family life in the UK seeking to resist his deportation.

  10. On 23 March 2019, the Secretary of State rejected the appellant’s human rights claim under Art 8 of the ECHR.

The Appeal to the First-tier Tribunal

  1. The appellant appealed to the First-tier Tribunal. In a decision sent on 30 October 2020, Judge I D Boyes allowed the appellant’s appeal under Art 8 of the ECHR.

  2. First, Judge Boyes rejected the appellant’s contention that the appellant was not liable to deportation because he was not a “foreign criminal” under the UK Borders Act 2007 (the “UKBA 2007”) due to the fact that he had not been sentenced to a period of twelve months’ imprisonment for a single offence but rather, to consecutive terms of six months’ imprisonment for two offences. The judge concluded that the Secretary of State had not applied the automatic deportation provisions in the UKBA 2007 but rather, had decided to make a deportation order under s.5(1) by reference to s.3(5)(a) of the IA 1971 on the basis that the appellant’s deportation was “conducive to the public good”.

  3. Secondly, the judge then went on to apply the provisions in s.117C of the Immigration, Nationality and Asylum Act 2002 (“the NIAA 2002”). The judge found that the appellant did not fall within Exception 1 in s.117C(4) or Exception 2 in s.117C(5).

  4. As regards the former, the judge accepted that the appellant was “socially and culturally integrated into the UK” (s.117C(4)(b)) and had lived most of his adult life in the UK. However, the judge concluded that there were not “very significant obstacles” to the appellant’s integration on return to Bahrain (s.117C(4)(c)).

  5. As regards the latter, the judge did not accept that there was a “genuine and subsisting parental relationship” between the appellant and his son, R and that, as a consequence, it could not be said that it would be “unduly harsh” for the appellant to be deported.

  6. Thirdly, however, the judge went on to apply the test in s.117C(6), namely whether there were “very compelling circumstances, over and above those described in Exceptions 1 and 2” so as to outweigh the public interest. The judge found that there were such circumstances and so the public interest was outweighed and it would not be proportionate to deport the appellant. On that basis, the judge allowed the appellant’s appeal under Art 8 of the ECHR.

The Appeal to the Upper Tribunal

  1. The Secretary of State sought permission to appeal on a number of grounds.

  2. First, the judge had erred in law in finding that there were “very compelling circumstances” sufficient to outweigh the public interest under s.117C(6) given his findings that the appellant could not meet the requirements of either Exception 1 or Exception 2. The judge had made inconsistent findings, in reaching that conclusion, namely that the appellant both continued to deny his wrongdoing but also concluding that he had shown genuine remorse for his offending. Further, in finding that the appellant was rehabilitated, the judge, in addition to reaching those inconsistent findings, was wrong to take into account that the appellant had not committed any further offences given the short time since his release.

  3. Secondly, the Secretary of State contended that the judge had been wrong to find that the appellant was “socially and culturally integrated” for the purposes of Exception 1 (which continued to be relevant in relation to the application of s.117C(6)) because he had failed to take into account the appellant’s offending and had merely looked at the position of his integration retrospectively before that point in time.

  4. On 23 November 2020, the First-tier Tribunal (UTJ Martin) granted the Secretary of State permission to appeal.

  5. On 6 January 2021, the appellant filed a rule 24 response seeking to uphold the judge’s decision.

Discussion

1. The “Serious Harm” Argument

  1. Before turning to the Secretary of State’s grounds, it will be helpful to consider the point raised by the appellant in the rule 24 response which, at least there, contends that the respondent had no power to deport the appellant as he is not a “foreign criminal” within s.32(1) of the UKBA 2007 as he has not been sentenced to a period of “at least twelve months’” imprisonment for a single offence (see ss.32(2) and 38(1)(e)).

  2. In his oral submissions, Mr Holt accepted that whether or not the appellant was a “foreign criminal” for the purposes of the UKBA 2007 did not affect whether he was liable to deportation. That, in my judgment, is correct.

  3. The Secretary of State made a decision to deport the appellant under s.3(5)(a) of the IA 1971 on the basis that, the appellant not being a British citizen, “the Secretary of State deems his deportation to be conducive to the public good”. On that basis, the Secretary of State had the power to make a deportation order under s.5(1) of the IA 1971. That much is plain from the respondent’s decision letter where it is stated:

We wrote to you on 29 October 2019 and notified you that because of your criminal convictions and behaviour in the UK the Secretary of State has decided to make a Deportation Order against you under Section 5(1) of the Immigration Act 1971. This is because the Secretary of State deems your deportation to be conducive to the public good”.

  1. The Secretary of State did not purport to apply the ‘automatic’ deportation provisions in the UKBA 2007 on the basis that the appellant was a “foreign criminal” because he had been sentenced to a period of at least twelve months’ imprisonment for a single offence. Had the ‘automatic’ deportation provisions applied then by virtue of s.32(4):

For the purposes of Section 3(5)(a) of the Immigration Act 1971 ..., the deportation of a foreign criminal is conducive to the public good”.

  1. The Secretary of State would, in those circumstances, be relieved of having to make any decision about whether the individual’s deportation was conducive to the public good because it is simply deemed that it is...

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