Upper Tribunal (Immigration and asylum chamber), 2021-12-08, PA/05350/2018
| Jurisdiction | UK Non-devolved |
| Date | 08 December 2021 |
| Published date | 23 December 2021 |
| Hearing Date | 02 November 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | PA/05350/2018 |
Appeal Number: PA/05350/2018
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/05350/2018
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 2nd November 2021 |
On 8th December 2021 |
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Addendum inserted on 1st December 2021 |
Before
UPPER TRIBUNAL JUDGE KEITH
DEPUTY UPPER TRIBUNAL JUDGE MALIK QC
Between
Mr Faham Jaffer
(ANONYMITY DIRECTION not MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr R Sharma, instructed by Thompson & Co Solicitors
For the Respondent: Mr T Lindsay, Senior Home Office Presenting Officer
DECISION AND REASONS
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This is the remaking of the decision in the appellant’s appeal against the respondent’s refusal of human rights claim, in the context of a deportation order having been made against him.
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The background to this appeal is the appellant is a foreign criminal, as defined by section 117D of the Nationality, Immigration and Asylum Act 2002. The appellant was sentenced to two years’ imprisonment following his conviction on 1st June 2016 for sexual activity (penetration) with a vulnerable child (as described by the sentencing judge). The deportation order was made against him, and the appellant claimed asylum, and also that his return to Pakistan, his country of origin, would breach his rights under articles 3 and 8 of the ECHR. It is unnecessary to rehearse in detail the protection or article 3 claims as these were dismissed and are not the subject of a further appeal, following the error of law decision of Upper Tribunal Judge Jackson promulgated on 5 October 2020, a copy of which is annexed to these reasons. The sole appeal is on the basis of article 8 ECHR, specifically on the basis of right to respect for the appellant’s family and private life. He has a relationship with a dual British/Finnish partner, whom it is unnecessary to name. He asserts that the effect of his deportation on her would be unduly harsh for the purposes of ‘Exception 2’, section 117C(5) of the Nationality, Immigration and Asylum Act 2002. The respondent accepts that the scenario of the appellant’s partner returning with him to Pakistan, his country of origin, would be unduly harsh, but she does not accept that it would be unduly harsh for the appellant’s partner to remain in the UK without the appellant – the so-called ‘stay’ scenario. The respondent further concluded that there were no very compelling circumstances to outweigh the significant public interest in the appellant’s deportation, either in respect of his family or private life.
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The First-tier Tribunal Judge, Judge Hanley had allowed the appellant’s appeal on article 8 grounds, but Upper Tribunal Judge Jackson concluded that her decision contained errors of law. She set aside Judge Hanley’s findings and conclusions. She directed that the remaking of the appellant’s appeal be retained in the Upper Tribunal.
The issues in this appeal
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We discussed and agreed with the parties that the issues in remaking the judge’s decision, are:
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Whether the effect of the appellant’s deportation, specifically his separation from his partner, while she remains in the UK, would be unduly harsh on her (“Exception 2”)
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Whether there are very compelling circumstances over and above Exception 2.
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In relation to private life, Mr Sharma accepted that ‘Exception 1’ (section 117C(4)) is not met but sought nevertheless to argue that there were very compelling circumstances in relation to private life, by virtue of the period of time that the appellant had lived in the UK, his employment history and lack of family support in Pakistan. We discussed with Mr Sharma that he was not seeking to revisit the article 3 findings that the appellant continues to be welcome by his family in Pakistan and has not been disowned (§112 of Judge Hanley’s decision); has not renounced his Muslim faith; and is not at risk because of his “westernised” lifestyle (§§113 and 114).
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The gist of the respondent’s refusal
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The core points taken against the appellant are as follows. The respondent accepts that the appellant has a genuine and subsisting relationship with his partner and that she is a qualifying British citizen. The respondent also accepts that their relationship was formed when the appellant was in the UK lawfully, with indefinite leave to remain. However, the respondent does not accept that it would be unduly harsh for the partner to remain in the UK without the appellant. While the appellant was in prison for a year from 2016 to 2017, his partner had been able to live independently and had adapted to life without his physical presence. Before meeting him, she had been able to live independently since coming to the UK in 2000, and her relationship with the appellant had only started in 2015.
The hearing before us
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In terms of documents, the respondent provided a bundle. The appellant provided four bundles, including earlier versions of the bundle before Judge Hanley. We make the preliminary observations that the appellant’s reliance on four different bundles did not assist the Tribunal. It would have been helpful to have had a consolidated bundle, not least because Mr Sharma only referred to a small number of documents in the bundles. We also emphasised to the representatives the importance of referring us to documents in the bundles which they regarded as relevant, as we made clear that they should not assume that we would read all of the documents in each of the bundles, many of which were duplicates. In making these comment we do not seek to criticise Mr Sharma himself in any way, rather we do so to remind his instructing solicitors of their obligation to assist this Tribunal.
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As a second preliminary issue, when the appellant began to give oral evidence, he touched upon his own mental health illness, as discussed in an earlier expert report. We asked Mr Sharma whether he was asking us to treat the appellant himself, in addition to his partner, as a vulnerable adult for the purposes of the Joint Presidential Guidance Note No 2 of 2010. Mr Sharma confirmed that the appellant was not a vulnerable adult. His mental health had significantly improved since the earlier report. We make this observation first, to distinguish him from his partner, whom it was said is a vulnerable adult and whom we treated as such, and second, because in oral evidence when discussing the viability of return to his country of origin, the appellant indicated that if he were returned to Pakistan, he would contemplate suicide. We come on to discuss generally our findings in relation to any obstacles to his integration in Pakistan but there is not before us, nor is it contended that there was any medical evidence that would contextualise such an assertion of suicidal ideation and, as already identified, the article 3 claim has previously been dismissed.
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In relation to the appellant’s partner, who has recently been assessed as autistic, Mr Sharma indicated that the impact of her autism could cause her difficulties in engaging in social situations. When she suffers from anxiety, she can sometimes freeze or have a panic attack. Mr Sharma was content that when she gave evidence, he and we should monitor the situation to check the appellant’s partner’s understanding of any questions. If she were either not able to understand a question or to suffer any panic attack or freeze during evidence, we would intervene, and Mr Sharma was at liberty to do so. We explained to the partner when she gave evidence that if she did not understand any question she was asked, or if she was not able to answer for any reason, she should let us know straightaway, if she was able. We monitored the situation throughout the hearing. It never became necessary for us or Mr Sharma to intervene. We were satisfied that the appellant’s partner was able to participate fully and effectively in the hearing. She checked her understanding of questions on occasion but in response to those questions she gave detailed and considered answers. Mr Lindsay was careful to ask focussed, relevant questions. We are satisfied in that context that the partner’s vulnerability did not affect her ability to give evidence before us and that there has been a fair hearing.
The witness evidence
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The appellant and his partner gave evidence separately, each adopting two witness statements in separate bundles and each giving additional oral evidence in response to examination-in-chief by Mr Sharma, and cross-examination by Mr Lindsay. We summarise their evidence below, although we have considered their witness statements in full.
The appellant
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In his written...
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