Upper Tribunal (Immigration and asylum chamber), 2022-01-27, HU/17002/2018
| Jurisdiction | UK Non-devolved |
| Date | 27 January 2022 |
| Published date | 15 February 2022 |
| Hearing Date | 07 January 2022 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/17002/2018 |
Appeal Number: HU/17002/2018
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/17002/2018
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 7 January 2022 |
On 27 January 2022 |
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Before
UPPER TRIBUNAL JUDGE NORTON-TAYLOR
DEPUTY UPPER TRIBUNAL JUDGE MONSON
Between
Louis dielliver valliano Simon
(anonymity directioN NOT MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr C Rahman, Counsel, instructed by Okafor and Co Solicitors
For the Respondent: Mr T Lindsay, Senior Home Office Presenting Officer
DECISION AND REASONS
Introduction
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This is the re-making of the decision in the Appellant’s appeal following the previous decision of a panel of the Upper Tribunal (comprising Mr Justice Saini and Upper Tribunal Judge Norton-Taylor), promulgated on 4 November 2021, by which it concluded that the First-tier Tribunal had materially erred in law when allowing the Appellant’s appeal against the Respondent’s refusal of his human rights claim made in the context of deportation proceedings. The error of law decision is appended to this re-making decision and both decisions should be read together.
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In summary, the First-tier Tribunal had allowed the Appellant’s appeal on Article 8 grounds because it concluded that it would be unduly harsh for his partner and child to go and live in Mauritius with him, that it would also be unduly harsh for them to be separated, and that the circumstances as a whole were very compelling. The panel decided that the First-tier Tribunal had failed to provide adequate reasons in respect of both limbs of the unduly harsh assessment, particularly in respect of the partner’s medical condition, and these errors fatally undermined the very compelling circumstances conclusion with respect to section 117C(6) of the Nationality, Immigration and Asylum Act 2002, as amended (“the 2002 Act”). The First-tier Tribunal’s decision was set aside, although findings made in respect of the Appellant’s private life and the exception contained within section 117C(4) of the 2002 Act were expressly preserved.
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The core issues in respect of the resumed hearing were identified as being: (a) firstly, whether both limbs of the unduly harsh assessment could be satisfied at all; and (b) whether there were very compelling circumstances in the Appellant’s case over and above those described in the exceptions set out in sections 117C(4) and, in particular 117C(5) of the 2002 Act.
Background
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The Appellant is a citizen of Mauritius, born in 1997. He arrived in the United Kingdom in 2008 as a visitor aged 10 years and 11 months. He subsequently became an overstayer and a number of attempts to regularise his status were unsuccessful. On the day of his 18th birthday the Appellant committed a number of serious offences, all linked to a particular incident in his local area. Having contested a trial he was convicted in April 2016 of robbery, wounding with intent to commit grievous bodily harm, and possession of an offensive weapon in public. He received concurrent sentences of 3 years for the first offence, 5 years for the second, and 12 months for the third. The convictions and sentences obliged the Respondent to initiate deportation proceedings pursuant to the UK Borders Act 2007 and a deportation order was signed on 14 October 2017. In response, the Appellant made a human rights claim in February 2018. In this he relied on his ties in the United Kingdom and claimed lack of connections to Mauritius.
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By the time his case went before the judge following the Respondent’s refusal of the human rights claim, the Appellant was relying in large part on family life under Article 8 ECHR. He claimed to be in a genuine and subsisting relationship with a British citizen, JL, and their British daughter, who had been born in September 2019. JL suffered from idiopathic generalised epilepsy and was receiving relevant medication for this condition.
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By the time of the resumed hearing, JL had given birth to the couple’s second child, a son. He was born on 1 December 2021 and is, like a sister, a British citizen. This fact did not give rise to any question of whether a “new matter” now existed.
The evidence
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Notwithstanding the clear directions included in the error of law decision, the Appellant’s representatives only filed additional evidence on 6 January 2022, the day before the hearing. This new evidence was not accompanied by any explanation as to why nothing had been done sooner. It transpired that the new evidence had not even been served on the Respondent. In the circumstances, we made an oral direction at the hearing for a written explanation from the solicitors no later than 5pm on Wednesday 12 January 2022. It was made clear to Mr Rahman that the explanation was expected to be comprehensive.
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The new evidence mentioned above consists of the following:
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the birth certificate of the Appellant’s son, born on 1 December 2021;
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a letter from Kings College Hospital confirming admission to hospital of the Appellant’s son on 4 January 2022;
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a letter from Dr Dassan, Consultant Neurologist at Ealing Hospital, dated 7 July 2021, relating to JL’s condition.
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In addition, the Appellant continues to rely on the bundle provided to the First-tier Tribunal, indexed and paginated 1-38.
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The Appellant attended the resumed hearing and gave oral evidence in English. This evidence is a matter of record and we do not propose to summarise it here. Relevant aspects thereof will be referred to when we set out our findings of fact and conclusions, below.
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JL, did not attend the hearing. We were told that this was because she and the couple’s baby had only been discharged from hospital the day before and that there was to be a check-up at home on the day of the hearing. We asked for any documentary evidence confirming this to be sent in immediately. During the course of the hearing, JL did indeed email through a discharge notification, confirming the series of events which had been outlined to us.
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No other witnesses appeared on behalf of the Appellant.
Relevant legal framework
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There is no need to set out the applicable legislative framework and relevant case-law in any detail here. Both parties are fully aware of the legal context within which our assessment of the evidence falls to be conducted.
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The following summary will suffice. In light of the Appellant’s sentence for the relevant offences, in order to succeed in his appeal he must show that there are very compelling circumstances over and above those described in the two exceptions contained in sections 117C(4) and (5) of the 2002 Act. The unduly harsh assessment may be relevant to that task, but the bare satisfaction of either exception will not be sufficient.
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In assessing whether it would be unduly harsh for JL and the two children to go to Mauritius and whether it would be unduly harsh for a family split to occur, we have no regard to the misconduct of the Appellant. As the case-law currently stands, our primary sources as regards self-direction are KO (Nigeria) [2018] UKSC 53; [2019] Imm AR 400 and HA (Iraq) [2020] EWCA Civ 1176; [2021] Imm AR 59.
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In respect of the very compelling circumstances threshold, we have taken into account what is said at paragraphs 29 to 32 of NA (Pakistan) [2016] EWCA Civ 662; [2017] Imm AR 1, as endorsed by HA (Iraq).
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The public interest in deportation is made up of three elements: deterrence, protecting the public from a risk of re-offending; and reflecting the public’s concern as to the ability of the authorities to take action against foreign criminals (what had once been described as the “revulsion” element). However, the public interest is not a fixity and it may be reduced in light of strong factors weighing in an individual’s favour.
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The best interests of children is of course a primary consideration in all cases.
Submissions
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As with the evidence, the parties’ respective submissions are a matter of record. By way of summary, we set out the following. Mr Lindsay had initially raised a concern as to whether there was still a genuine and subsisting relationship between the Appellant and JL, given her non-attendance at the hearing. He later accepted that this may not be a particularly potent line of argument. Indeed, he took no substantive issue with the Appellant’s credibility in the general. It was accepted that the best interests of both children lay in remaining with both their parents. This could be achieved by the entire family unit moving to Mauritius. As to a relocation, Mr Lindsay submitted that in light of the evidence, such an occurrence would not be unduly harsh. The Appellant had close family living in that country, there was no evidence to indicate that relevant medication for JL’s condition would be unavailable, and there was no evidence to indicate a lack of educational or employment opportunities. As British citizens, JL and the children could return to the United Kingdom at any time.
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Mr Lindsay submitted that the “stay”...
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