Upper Tribunal (Immigration and asylum chamber), 2021-11-24, HU/16499/2019
| Jurisdiction | UK Non-devolved |
| Date | 24 November 2021 |
| Published date | 09 December 2021 |
| Hearing Date | 17 September 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/16499/2019 |
Appeal Number: HU/16499/2019
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/16499/2019 (v)
THE IMMIGRATION ACTS
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Heard by a remote hearing |
Decision & Reasons Promulgated |
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On the 17th September 2021 |
On the 24th November 2021 |
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Before
UPPER TRIBUNAL JUDGE REEDS
Between
SG
(Anonymity direCTION MADE)
Appellant
AND
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Moksud, Counsel instructed on behalf of the appellant
For the Respondent: Mr Bates, Senior Presenting Officer
DECISION AND REASONS
Introduction:
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
Anonymity was granted at an earlier stage of the proceedings because the case involved the circumstances of minors. I find that it is appropriate to continue the 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 his family members. 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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On 4 May 2018 the respondent made a decision that the appellant is to be deported from the United Kingdom (‘UK’), following his criminal convictions as it was considered that his presence in the UK was not conducive to the public good. The respondent refused the appellant’s human rights claim in a decision letter dated 25 September 2019.
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The appellant, a citizen of Jamaica appealed this decision to the First-tier Tribunal (Judge Handler) (hereinafter referred to as the “FtTJ”). In a decision sent on 18 March 2020, the FtTJ dismissed his appeal on human rights grounds, and the appellant has now appealed, with permission, to the Upper Tribunal.
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The hearing took place on 17 September 2021, by means of Microsoft teams which has been consented to and not objected to by the parties. A face-to-face hearing was not held because it was not practicable and both parties agreed that all issues could be determined in a remote hearing. I conducted the hearing from court with the parties’ advocates attending remotely. The appellant also was present during the hearing so that he could hear and see the proceedings being conducted. No technical problems encountered during the hearing, and I am satisfied both advocates were able to make their respective cases by the chosen means.
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I am grateful to Mr Moksud and Mr Bates for their clear oral submissions.
Background:
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The appellant’s immigration history is summarised in the decision of the FtTJ and the decision letter.
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The appellant entered the United Kingdom on 22 August 2001 with six months leave as a visitor. On 26 very 2002 he submitted a student application and on 29 October 2002 was granted leave to remain until 28th of February 2003. This was followed by a 2nd application as a student which was granted until 31 March 2004.
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On 21 March 2004 he submitted a marriage application as the spouse of a person present and settled in the UK which was voided stop however a 2nd application was submitted on 24 March 2004 on the basis of his marriage which was granted until 10 May 2006.
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On 11 April 2006 the appellant submitted a marriage application as a spouse of a person present and settled in the UK, but it was refused on 28 July 2006. No appeal was lodged against this refusal.
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On 4 October 2006 he was arrested by the police during a routine spot check and was found to be in overstayer. He was issued with an IS.151A notice and on 24 January 2007 was removed from the UK to Jamaica.
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On 30 March 2008 he returned to the UK with the fiancé entry clearance visa valid from 11 March 2008 to 11 September 2008. The appellant married on 20 April 2008 to SM, a British citizen.
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On 10 June 2008, his omitted an application of the spouse of a person present and settled in the UK but on 13 June 2008 the application was rejected as the fee was not paid. A further application was submitted and was granted on 10 July 2008 valid until 10 July 2010.
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Later applications for leave as the spouse of a person present and settled in UK were submitted but were rejected as no fees were paid. Following the 3rd application made on 7 October 2010 he was granted indefinite leave to remain.
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On 11 June 2011, the appellant was granted indefinite leave to remain.
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Whilst present in the United Kingdom the appellant has amassed a number of convictions. They are scheduled in the decision letter and are summarised in the FtTJ’s decision at paragraph [19]. The disclosure print shows that the appellant has 14 convictions the 23 offences between 15 September 2014 November 2018. Of those offences, there are 2 offences against the person, both in 2018, one offence against property in 2004, 5 theft and kindred offences between 2000 and 2018, to offences relating to police/courts/prisons between 2005 and 2018, 3 drugs offences between 2002 and 2013, 2 firearms/shotgun/offensive weapons offences between 2011 and 2017 and 8 miscellaneous offences between 2002 and 2016.
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The FtTJ recorded in his decision at paragraph [19] the appellant did not dispute the information about his offending history set out in the respondent’s decision letter.
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On 12 March 2018 the appellant was convicted at the Crown Court of theft from a shop/store, common assault, going equipped for theft and breach of a suspended sentence of having a blade/article which was sharply pointed in a public place. On 3 April 2018 he was sentenced to 8 months and 14 days imprisonment.
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In light of his convictions, the appellant was notified that the respondent decided to make a deportation order against him under section 5 (1) of the Immigration Act 1971. This was responded to by the appellant on 5 June 2018 and 19 June 2018. Further representations were submitted on 13 August 2018. Following this a decision was made on 25 September 2019 to refuse his human rights claim.
The decision of the Secretary of State dated 25 September 2019:
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The decision letter is a lengthy document extending to 15 pages.
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Having set out the appellant’s immigration history, the respondent set out a schedule of the appellant’s criminal offending. In respect of his article 8 claim the respondent set out the nature of his claim which related to his relationship with his partner and his children, who were British citizens. The appellant has 7 children in the United Kingdom (1 of whom is an adult) and he has a relationship with all of the 6 children except for one child who was the subject of 1 of his offences. The appellant was also in a long-term relationship with NW a British Citizen, since 2013 and they have 2 children together. It was submitted that it would be unduly harsh to deport him given their genuine and subsisting relationship and the impact upon family members.
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It was accepted that his children were British citizens living in the UK residing with their respective mothers. It is not accepted that he had a genuine and subsisting parental relationship with the children because he had not provided details of his involvement in their lives other than what had been set out in his representations of 13 August 2018. There was no documentary evidence to show that prior to his custody he was conducting action for all of the children as claimed nor that during his period of custody that their main carers, their mothers would have conducted such tasks. It was also noted that he failed to demonstrate that he played an active role in each of the children’s lives or contributed meaningfully to them. The respondent noted that he had not been a positive role model for them as he had acted violently against one of the children.
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It was accepted that it would be unduly harsh for four of the children to live in Jamaica because the appellant had not shown that he had been a permanent father figure in any of their lives, had a family life or lived as family unit with any of them. However in relation to younger child, it was not considered it would be unduly harsh for her to live in Jamaica.
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In summary it is not accepted that it would be unduly harsh for the children to remain in the UK even though he were to be deported. This was because the children could remain in the care of their mothers as they did during his absence whilst he was in prison, and he had not shown to have a relationship with the children other than being their father. Any current arrangements in place for their care would continue to apply.
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In respect of his family life with his partner, it was accepted that his partner was a British citizen and that she was in the UK and expecting a 2nd child. Although it may be accepted that the appellant may have had a family life with his partner, they did not live together and therefore the relationship did not constitute a genuine and subsisting relationship.
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It was not accepted that it would be unduly harsh for his partner to live in Jamaica if she chose to do...
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