Upper Tribunal (Immigration and asylum chamber), 2017-04-06, DA/00146/2013
| Appeal Number | DA/00146/2013 |
| Hearing Date | 08 March 2017 |
| Published date | 25 April 2022 |
| Date | 06 April 2017 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: DA/00146/2013
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: DA/00146/2013
THE IMMIGRATION ACTS
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Heard at Field House, London |
Decision & Reasons Promulgated: |
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on 21 January 2014, 06 March 2014, 29 April 2014 and 08 March 2017 |
on 6 April 2017 |
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Before
The President, The Hon. Mr Justice McCloskey
and Upper Tribunal Judge O’Connor
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
CS
[ANONYMITY DIRECTION MADE]
Respondent
Representation
Appellant: Mr D Blundell (of counsel), instructed by the Government Legal Department
Respondent: Ms L Dubinsky (of counsel), instructed by Birnberg Peirce & Partners
DECISION
Introduction
This is the judgment of the panel to which both members have contributed.
ANONYMITY
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At the outset, we would highlight that CS (hereinafter “the Respondent”) has the benefit of an anonymity direction made by both Tribunals and the protections which flow therefrom. Furthermore, there must be no publication of the identity of the Respondent’s children or anything which could result in their identification. We refer also to the separate, tailor-made anonymity order summarised in open court at the outset of the hearing on 08 March 2017 and promulgated subsequently on 10 March 2017.
The Respondent
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The Respondent is a Moroccan national, now aged 30 years. In 2002 she was married to a British citizen in a ceremony conducted in her home country. On 8th September 2003, having been granted a visa based on her marriage, she entered the United Kingdom lawfully. She had permission to remain here until 20th August 2005. On 31st October 2005, her application for indefinite leave to remain on the ground of domestic violence allegedly perpetrated by her husband was granted by the Secretary of State for the Home Department (the “Secretary of State”). In 2010, she was reconciled with her husband and an Islamic wedding ceremony followed. On 14th July 2011, her son, a British citizen was born. He is now aged five years. The parents have been permanently separated since 2011.
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On 21st March 2012, the Respondent was convicted of attempting to supply a prohibited article, a SIM card, to a prisoner of considerable notoriety during a prison visit. On 4th May 2012, she was sentenced to 12 months’ imprisonment. On 23rd May 2012, her appeal against sentence and conviction was dismissed. On 2nd August 2012, she was notified of her liability to deportation. On 30th August 2012, her legal representatives submitted an asylum application on her behalf. On 2nd November 2012, the custodial element of her sentence of imprisonment having expired, she was released from prison. The Secretary of State’s deportation decision followed, on 9th January 2013 (infra). The Respondent appealed. On 3rd September 2013 the First-tier Tribunal (the “FtT”) allowed her appeal. The Secretary of State appeals to this Tribunal with permission.
The impugned decision
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By a decision dated 9th January 2013 made on behalf of the Secretary of State, the Respondent was notified that it had been decided to deport her from the United Kingdom under Section 32(5) of the UK Borders Act 2007. This decision incorporated a rejection of the Respondent’s application for asylum on the ground that a well founded fear of persecution in the event of returning to her country of origin had not been demonstrated. Simultaneously, the Respondent’s claims under Articles 2 and 3 ECHR were dismissed. It was further determined that by virtue of having been convicted of a criminal offence and sentenced to 12 months’ imprisonment (infra) she was excluded from humanitarian protection under paragraph 339C of the Immigration Rules. The final element of the decision entailed a conclusion that the deportation of the Respondent would not infringe her rights under Article 8 ECHR.
First instance decision
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The FtT allowed the Respondent’s appeal against the refusal of asylum and, further, under Articles 3 and 8 ECHR and EU law grounds. This was followed by an application by the Secretary of State for permission to appeal to this Tribunal, which was granted. The terms in which permission to appeal was granted are contained in a combination of the initial grant and the ruling of this Tribunal dated 21st January 2014.
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As a result, the task for this Tribunal is to decide whether the determination of the FtT is infected by a material error of law in any of the following respects:
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In refusing the Secretary of State’s application for an adjournment of the hearing.
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In deciding that the onus was on the Secretary of State to establish that the deportation of the Appellant was conducive to the public good.
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In its Article 8 ECHR assessment and conclusion.
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In holding that the decision in Case C-34/09 Zambrano v Office National de L’Emploi [2012] QB 265 was a complete bar to her deportation.
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Referral to the CJEU
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With specific reference to ground (d) above, this Tribunal, by its order dated 04 June 2014, referred certain questions to the Court of Justice of the European Union (the “CJEU”) under Article 267 TFEU. These questions, in substance, sought guidance on whether a Member State could expel to a third country a third country national convicted of a criminal offence who is the primary carer of a EU citizen child where such expulsion would require the child to leave the territory of the EU. The legal touchstones identified in the questions referred were Article 20 TFEU and Directive 2004/38/EC (the “Citizen’s Directive”). The Grand Chamber of the CJEU promulgated its preliminary ruling on 13 September 2016: see Secretary of State v CS (Case C-304/14) [2017] 2 WLR 180. We shall consider the Grand Chamber’s judgment in some detail infra. The hearing of this appeal was resumed and completed thereafter.
First ground of appeal: the fair hearing issue
8. The material facts bearing on this discrete issue are not in dispute. In brief compass:
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The impugned decision having been made on 9th January 2013, the Respondent’s Notice of Appeal was dated 23rd January 2013.
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On 28th January 2013, the FtT issued the following directions, which were addressed to both parties:
“The hearing will be conducted by a panel. It is directed that all documents must be filed in duplicate for the panel hearing.”
In separate directions, bearing the same date, the Secretary of State was required to serve a series of specific documents. These directions further stated:
“The Appellant [the Respondent herein] or his or her representative must file any of the documents referred to above that they have in their possession or are able to obtain and must serve copies on the Home Office Presenting Officer’s Unit ….
Both parties
All documents must be filed no later than 10 days before the hearing or if no hearing date has yet been notified then 10 days after the date of these directions.”
These directions also brought to the attention of the parties Rule 21 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 which, inter alia, emphasises the importance of complying with directions regarding the preparation and service of evidence pre-hearing.
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On the same date, 28th January 2013, the Notice of Hearing, intimating that the appeal would be heard on 19th February 2013, was transmitted to both parties.
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By letter dated 5th February 2013, the Respondent’s solicitors requested an adjournment. They based this request on the need to obtain a report from a Social Work expert, having regard to their client’s challenge to the Secretary of State’s assessment that the best interests of the child would be furthered by the deportation of the Respondent, presumably accompanied by her son, to Morocco. This letter stated:
“…. The centrepiece of this appeal is the relationship between the [Respondent] and her son and the consequences for the son (a British citizen) if he were to relocate to Morocco with his mother ……”
It was proposed, to allow sufficient time for preparation of the report, that the appeal be relisted for hearing not before 8th March 2013. Strikingly, this letter was silent on the issue of expert country evidence.
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The FtT acceded to the Respondent’s adjournment request.
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Next, by Notice dated 15th April 2013, both parties were notified that a case management review hearing would be conducted on 9th May 2013. This Notice emphasised, once again, the importance of service of all evidence by both parties. It also highlighted that the topics which would, predictably, be considered at the case management hearing included “any requirement for expert/medical evidence”.
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On 3rd May 2013, the FtT issued the following directions to both parties:
“Copy of PSR [Pre-Sentence Report] within 7 days upon the Home Office and the Tribunal. A bundle to be served on Home Office and Tribunal not less than 14 days before the hearing date. Anonymity order granted or renewed.”
[Our emphasis]
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Next, on 9th May 2013, the case...
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