Upper Tribunal (Immigration and asylum chamber), 2022-07-08, HU/18799/2019
| Appeal Number | HU/18799/2019 |
| Hearing Date | 18 May 2022 |
| Published date | 25 July 2022 |
| Date | 08 July 2022 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2022-000036, HU/18799/2019
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/18799/2019
UI-2022-000036
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 18 May 2022 |
On 8 July 2022 |
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Before
THE HON. MRS JUSTICE HILL
SITTING AS A JUDGE OF THE UPPER TRIBUNAL
UPPER TRIBUNAL JUDGE NORTON-TAYLOR
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
F B
(anonymity directioN MADE)
Respondent
Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, an anonymity order is made. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the appellant or members of his family. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.
Representation:
For the appellant: Mr E Tufan, Senior Home Office Presenting Officer
For the respondent: Mr D Jones, Counsel, instructed by Duncan Lewis Solicitors
DECISION AND REASONS
Introduction
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For ease of reading, we shall refer to the parties as they were before the First-tier Tribunal. Thus, the Secretary of State is once again “the respondent” and FB is “the appellant”.
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The respondent appeals with permission against the decision of First-tier Tribunal Judge Barrowclough (“the judge”), promulgated on 19 August 2021. By that decision, the judge allowed the appellant’s appeal against the respondent’s decisions to refuse his human rights and protection claims, dated 5 November 2019 and 26 April 2021, respectively.
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The appellant is a citizen of Jamaica, born in 1980. He came to the United Kingdom in 2001 and had leave to remain until July 2003. In March of that year he was convicted of possession with intent to supply Class A drugs (crack cocaine) and sentenced to 3 years’ imprisonment (the offence had taken place in September 2002). Deportation action followed, which ultimately resulted in the appellant succeeding in an appeal in December 2007. That decision was overturned by the Asylum and Immigration Tribunal, with a subsequent application for permission to appeal to the Court of Appeal being refused in October 2008. A further two years elapsed before a Deportation Order was signed in November 2010. In June 2011 the appellant was recorded as an immigration absconder. His next interaction with the respondent was not until May 2018, whereafter he has reported on a monthly basis.
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In February 2019, the appellant made an application for leave to remain, deemed to constitute the human rights claim. This was based on Article 8 ECHR (“Article 8”) and specifically his long-standing marriage to a British citizen, Mrs B, and his relationship with their two British citizen children, born in 2015 and 2017. In addition, the appellant relied on his lengthy residence in United Kingdom and the claimed difficulties to any reintegration into Jamaican society. The refusal of that claim gave rise to a right of appeal.
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In June 2020, the appellant made his protection claim, asserting that by virtue of giving evidence against co-defendants at his trial in 2003, he had been labelled as an informer and would, for that reason, be at risk from those individuals and/or their criminal associates in Jamaica. In addition to that risk, the appellant claimed that he would face significant problems as a deportee. In refusing the claim, the respondent did not accept that the appellant was at risk from specific individuals, gangs, or society in general. It was said that there was a sufficiency of protection from the Jamaican authorities and/or that internal relocation was a viable option. It appears to have been accepted that one of the appellant’s co-defendants had in fact been murdered on return to Jamaica 2019. This decision also attracted a right of appeal.
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Following lodgement of the appeals (which were quite sensibly processed by the First-tier Tribunal in tandem), the respondent conducted a review of the case. It was accepted that the appellant should not have been regarded as an immigration absconder between 2011 and 2018. This was because the respondent could not establish that he had been properly informed of his bail conditions in the first place. The two refusals under appeal were maintained.
The decision of the First-tier Tribunal
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The judge began his decision by setting out in detail the appellant’s immigration and criminal background, together with the respondent’s written case against him: [2]-[15]. The judge then went on to provide a comprehensive recitation of the representatives’ submissions and the evidence from the appellant and his four witnesses, including Mrs B: [16]-[40].
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At [43] the judge concluded that there were good grounds for departing from the findings made in the 2008 appeal, given the subsequent existence of the appellant’s children, delays by the respondent, and the production of expert evidence. No issue has been taken in respect of this issue and we need not address it further.
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Next, the judge dealt with an argument put forward by the appellant under the well-known Zambrano principle (Ruiz Zambrano v Office national de l’emploi [2011] Imm AR 521). Having directed himself to relevant case law, the judge concluded that this submission did not assist the appellant: [44]. Again, there is no dispute as to that conclusion and it is not a live issue before us.
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The judge then began his assessment of Article 8 in the context of the applicable statutory framework provided by Part 5A of the Nationality, Immigration and Asylum Act 2002, as amended (“the 2002 Act”), specifically section 117C, which provides as follows:
117C Article 8: additional considerations in cases involving foreign criminals
(1) The deportation of foreign criminals is in the public interest.
(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(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.
(4) Exception 1 applies where—
(a) C has been lawfully resident in the United Kingdom for most of C's life,
(b) C is socially and culturally integrated in the United Kingdom, and
(c) there would be very significant obstacles to C's integration into the country to which C is proposed to be deported.
(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.
(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.
(7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.
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At [45] the judge confirmed the absence of any dispute as to the genuine and subsisting parental relationship enjoyed by the appellant with his children (each of whom were a “qualifying child” under section 117D(1)(a) of the 2002 Act by virtue of their British citizenship). The correct question was then posed: would it be unduly harsh on the children to either go with the appellant to Jamaica or to be separated from him? In this regard, the judge directed himself to the guidance provided in HA (Iraq) [2020] EWCA Civ 1176; [2021] Imm AR 59, paraphrasing key points arising from the judgments of Underhill and Jackson LJJ. In summary, the appropriate approach involved a fact-sensitive analysis focused on the particular child(ren) in question.
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“Bearing those principles in mind”, the judge had “particular regard” to the evidence of an independent social worker, Ms S Prempeh, whose opinion was that the children’s best interests lay very much in remaining with both of their parents in the United Kingdom. Mrs B’s mental and physical health was considered by Ms Prempeh and it was her view that the appellant’s removal from the family unit would result in Mrs B been unable to care for the two children: [47]. In addition to that evidence, the judge took account of letter from Mrs B’s GP, which confirmed the existence of a physical ailment (psoriasis) and “low mood [and] increased emotional stress”, due at least in part on the physical condition: [48].
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Having expressly stated that he had weighed all matters together, the judge concluded that it would be unduly harsh for the children to relocate to Jamaica and for them to be separated from the appellant: [49]. In respect of the “go scenario”, the judge took account of a variety of factors, including: the children’s British citizenship; the lack of any meaningful ties to Jamaica; the appellant’s...
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