Upper Tribunal (Immigration and asylum chamber), 2021-12-03, PA/00456/2020
| Jurisdiction | UK Non-devolved |
| Date | 03 December 2021 |
| Published date | 20 December 2021 |
| Hearing Date | 10 November 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | PA/00456/2020 |
Appeal Number: PA/00456/2020
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00456/2020
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 10 November 2021 |
On 03 December 2021 |
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Before
MR. JUSTICE BOURNE
(Sitting as a Judge of the Upper Tribunal)
UPPER TRIBUNAL JUDGE O’CALLAGHAN
Between
SE CRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
-and-
STALIN RAJARATNAM
Respondent
Representation:
For the Appellant: Mr. T Lindsay, Senior Presenting Officer
For the Respondent: Mr. N Paramjorthy, Counsel, instructed by ABN Solicitors
DECISION AND REASONS
Introduction
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The appellant in this matter is referred to as the ‘Secretary of State’ in the body of this decision, the respondent as the ‘claimant’.
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The Secretary of State appeals against the decision of Judge of the First-tier Tribunal Adio (‘the Judge’) to allow the claimant’s human rights (article 8) appeal. The Judge’s decision was sent to the parties on 3 March 2021.
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The Judge refused the claimant’s appeal on (1) Refugee Convention, (2) human rights (article 3), and (3) humanitarian protections grounds. The claimant has not cross-appealed in respect of these adverse decisions.
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Judge of the First-tier Tribunal Boyes granted the Secretary of State permission to appeal on all grounds by a decision dated 28 June 2021.
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We allowed the Secretary of State’s appeal at the conclusion of the hearing, to the extent that we set aside the decision of the First-tier Tribunal in respect of the human rights (article 8) appeal, and now give our reasons.
Anonymity
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The Judge did not issue an anonymity order and one was not sought before us.
Background
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The claimant is a national of Sri Lanka. He arrived in the United Kingdom in or around 2002 and unsuccessfully claimed asylum in 2003. In 2009 he applied for a certificate of approval for marriage. The certificate was granted, and the marriage took place in 2009. His wife is a British citizen and the couple have three British citizen children.
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In May 2010 the claimant was convicted on a count of conspiracy to rob, for which a sentence of three years' imprisonment was imposed. Deportation proceedings were initiated by the Secretary of State and a deportation order signed on 20 May 2011. The claimant was eventually unsuccessful on appeal before the Upper Tribunal and subsequently before the Court of Appeal: [2014] EWCA Civ 8.
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Further representations were served by the claimant. The Secretary of State accepted that they satisfied the fresh claim requirements of paragraph 353 of the Immigration Rules (‘the Rules’), though ultimately she concluded that the extant deportation order was not to be revoked and the claimant was not to be granted leave to remain.
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The Judge allowed the appeal on human rights (article 8) grounds. He noted that the claimant was sentenced to a term of imprisonment of less than four years and so was permitted to seek the benefit of paragraph 399 of the Rules: para. 56 of the decision.
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He found that the claimant has a genuine and subsisting parental relationship with the children: para. 57.
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As to the consideration of undue harshness under section 117C(5) of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’) and paragraph 399(a) of the Rules, the Judge concluded, at paras. 57 to 59:
‘57. … None of the children have lived in the country to which the [claimant] is to be deported. None of the children have lived in Sri Lanka, they were all born in the UK. They are relatively young however they are entitled to remain in the UK. In terms of the issue of whether it would be unduly harsh for the children to live in Sri Lanka or to remain in the UK without the [claimant], there is an independent social work assessment by Dawn Griffiths dated 7 November 2020. Miss Griffiths states that in her opinion if the [claimant] left the UK it would have a significantly negative impact on the children and on their emotional health and wellbeing, growth and educational development. Just as the [claimant’s] wife stated in evidence the social worker stated that the [claimant] assists with parental responsibilities for the children by setting boundaries and promoting positive behaviour.
58. The assessment by Dawn Griffiths included conversations with the [claimant], his wife, the [claimant’s] father-in-law and mother-in-law and the [claimant’s] other son. It was noted the [claimant] has a good bond with his children. He shares parental responsibility with his wife. One of the children […] has been diagnosed […] The social worker noted that a child with […] needs can find it difficult to develop a relationship with other people, whereas [the child] has a positive relationship with [their] father. If the father was no longer around this would be distressful [for the child] and [they] could be disorientated if [their] routine changes and there is a likelihood that [they] would struggle and find it difficult to cope.
59. … The social worker noted that even via video link [the child] was reluctant to talk and had to sit with [their] father for comfort and reassurance … With regards to the impact of the separation of the family unit, the social worker noted that children are most likely going to experience a feeling of loss if their contact or relationship with the father was severed resulting in a risk to their emotional wellbeing and they will likely develop feelings of abandonment. And [sic] that this resulting in the loss of opportunities that are important for having a successful outcome in adulthood. The social worker concludes that removing the [claimant] would be unduly harsh and have a substantial risk to the children’s educational opportunities, health and emotional material wellbeing and chances for independence in adulthood for the children. The social worker does not attempt to give any expertise on the country of Sri Lanka and notes that at paragraph 24.21. She therefore stays within her area of competence in giving her opinion. I accept the opinion of Dawn Griffiths. It is based on evidence of what she observed. The [claimant] therefore meets the requirement of paragraph 399a of the Immigration Rules.’
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The Judge proceeded to consider paragraph 398 of the Rules and section 117C(6) of the 2002 Act, which establish that ‘very compelling circumstances’ can outweigh the public interest in deportation. He identified the relevant test as being ‘compelling circumstances’ at para. 60 of his decision and thereafter applied a ‘compassionate circumstances’ test, which he found at paras. 61 to 63 to have been met by the claimant.
Grounds of Appeal
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Mr. Lindsay succinctly identified the Secretary of State’s grounds as follows:
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The Judge addressed the ‘unduly harsh’ exception established by section 117C(5) of the 2002 Act and paragraph 399(a) of the Rules in terms that were too broad and failed to lawfully engage with the ‘go’ element of the test: see Patel (British citizen child – deportation) [2020] UKUT 00045 (IAC).
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In considering whether the ‘unduly harsh’ requirement was established, the Judge failed to lawfully consider the ‘stay’ element: see paragraph 399(a)(ii)(b) of the Rules.
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The Judge applied the wrong test when considering section 117C(6) of the 2002 Act and paragraph 398 of the Rules.
Decision on Error of Law
‘Unduly harsh’
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The Judge was required to consider two differently worded tests:
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Would it be unduly harsh for the children to live in Sri Lanka, and would it be unduly harsh for the children to remain in the United Kingdom without their father?
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If the answer to (a) above is No, then are there very compelling circumstances outweighing the public interest in deportation beyond those considered at (a) above.
‘Unduly harsh’
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We are satisfied that the Judge erred as to his consideration of the ‘unduly harsh’ assessment established by section 117C(5) of the 2002 Act.
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Section 117C of the 2002 states, as relevant to this appeal:
‘(3) In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.
…
(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C's deportation on the partner or child would be unduly harsh.’
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Exception 2 is mirrored in paragraph 399(a) of the Rules:
399. This paragraph applies where paragraph 398 (b) or (c) applies if –
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(a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and
(i) the child is a British Citizen; or
(ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case
(a) it would be unduly harsh for the child to live in the country to which the person is to be deported; and
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