Upper Tribunal (Immigration and asylum chamber), 2023-03-10, HU/01413/2021
| Appeal Number | HU/01413/2021 |
| Hearing Date | 14 December 2022 |
| Published date | 28 March 2023 |
| Date | 10 March 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2021-000799
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2021-000799 |
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First-tier Tribunal No: HU/01413/2021 |
THE IMMIGRATION ACTS
Decision & Reasons Promulgated
On 10 March 2023
Before
UPPER TRIBUNAL JUDGE RINTOUL
UPPER TRIBUNAL JUDGE STEPHEN SMITH
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
ALIYU ATANDA AFOLABI
(NO ANONYMITY DIRECTION MADE)
Respondent
Representation:
For the Appellant: Mr T. Lindsay, Senior Home Office Presenting Officer
For the Respondent: Mr O. Ogunbiyi, Counsel (Direct Access)
Heard at Field House on 14 December 2022
DECISION AND REASONS
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This is an appeal against a decision of the Secretary of State dated 29 October 2020 to refuse a human rights claim made in the form of a request to revoke a deportation order. The appeal was originally heard, and allowed, by First-tier Tribunal Judge Stedman (“the judge”). By a decision promulgated on 30 May 2022, Upper Tribunal Judge Stephen Smith found that the decision of the judge involved the making of an error of law and set it aside with certain findings of fact preserved, directing that the appeal be reheard in this tribunal in light of the partial preservation of the facts reached by the judge. It was in those circumstances that the matter came before us sitting as a panel on 14 December 2022, under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007. Judge Stephen Smith’s decision (“the error of law decision”) may be found in the Annex to this decision.
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For ease of reference, we will refer to the appellant before the First-tier Tribunal as “the appellant”.
Factual background
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For the full factual background, please see the error of law decision. We include only a summary here.
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The appellant is a citizen of Nigeria and was born in 1965. He arrived as a visitor in 1992, and has largely remained here since then, although beginning in 2018 he has spent lengthy periods in Ireland and Nigeria. Between 2007 to 2010 he held discretionary leave to remain. At other times, he held leave only as a visitor, or had no leave at all.
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In 2003, the appellant was sentenced to two and a half years’ imprisonment for offences of dishonesty, and on 29 October 2008 he was sentenced to five and a half years’ imprisonment for complex and high-value fraud offences. On 13 July 2009, the Secretary of State made a deportation order in respect of the appellant’s 2008 convictions, pursuant to the automatic deportation regime in the UK Borders Act 2007 (“the 2007 Act”). The appellant’s appeal against that order was dismissed on 28 August 2009. While serving his sentence of imprisonment, the appellant was transferred to hospital under sections 47 and 49 of the Mental Health Act 1983, having been diagnosed with paranoid schizophrenia. There is no documentary evidence concerning the appellant’s transfer to hospital, but according to paragraph 4.1 of the judge’s decision, the appellant’s oral evidence before the First-tier Tribunal was that the transfer took place in March 2010.
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In 2018, the appellant and his British wife, Hannah Afolabi, whom he married in August 2003, moved to Ireland. They were issued with EU residence documentation by the Irish authorities, pursuant, on the appellant’s case, to Mrs Afolabi’s self-employment under the EU free movement of persons regime. On 21 May 2018, Mrs Afolabi was issued with a Personal Public Service Number. The appellant was issued with a residence card on 16 January 2019. On 15 October 2019 while living in Ireland, the appellant applied for the deportation order to be revoked, on the grounds that Mrs Afolabi’s residence in that country conferred an EU right of entry to the UK on him, under regulation 9 of the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”). He also maintained that his Article 8 ECHR private and family life rights were such that it would be disproportionate to maintain the deportation order, on grounds that included his relationships with his children and grandchildren in the UK, and the overall length of his residence. He also relied on his poor mental and physical health. The application was refused on 29 October 2020 in the form of the refusal of a human rights claim, and it is that refusal decision that the appellant appeals against in these proceedings: we shall return to the decision itself in due course.
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In November 2020, the appellant and Mrs Afolabi moved to Nigeria, albeit, on the appellant’s case, temporarily. When they left Nigeria is not entirely clear, since neither the appellant nor Mrs Afolabi could remember in their evidence before us. From Mrs Afolabi’s oral evidence, it would have been in late August 2021 at the earliest, since it was “a few weeks” after the hearing before the First-tier Tribunal on 29 July 2021, which she and the appellant attended remotely from Nigeria. From Nigeria, they returned to Ireland, and then moved back the UK in early December 2022. It is not clear how the appellant was admitted to the UK since he is subject to a deportation order, but we need not make findings on that issue.
The decision of the Secretary of State under appeal
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In her decision dated 29 October 2020, the Secretary of State concluded that there was no evidence that Mrs Afolabi had been economically active in Ireland, such that he did not enjoy a right to reside under the 2016 Regulations. She concluded that, as a “foreign criminal” for the purposes of section 117C of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”), the appellant could only defeat the public interest in his deportation if he was able to demonstrate that there would be “very compelling circumstances” over and above the two statutory exceptions to deportation, since he had been sentenced to a period of imprisonment exceeding four years. There was no evidence that the appellant had parental responsibility for any minor child in the UK, and no evidence that the appellant’s ties with his adult children went beyond normal emotional ties. The appellant’s relationship with Mrs Afolabi did not outweigh the public interest in his deportation. The appellant’s health conditions did not engage the Article 3 ECHR threshold.
The decision of the First-tier Tribunal and the preserved findings of fact
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The judge reached a number of findings which were not impugned by the errors of law that led to his decision being set aside. Many such findings were little more than a recital of uncontroversial aspects of the chronology of the case, such as the absence of any further convictions following the appellant’s 2008 convictions and imprisonment (e.g. para. 11.3), and in any event, only represented the position on 29 July 2021, the date of the hearing below. The judge did not make any findings that the appellant enjoys more than normal emotional ties with his adult children (para. 11.5) but did find that he enjoys “family life” with Mrs Afolabi. The judge accepted, on the evidence before him, that the appellant represented a low risk of re-offending, and that, despite his mental and physical health conditions, the appellant’s removal to Nigeria would not engage Article 3 ECHR. He found that the appellant and Mrs Afolabi were well off and would have the means to put in place the necessary private medical care, in the event of his removal to Nigeria. Those preserved findings of fact represent the starting point for our analysis of the contemporary position.
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No other factors taken into account by the judge in assessing the proportionality of the appellant’s removal were preserved: as stated at paragraph 38 of the error of law decision, the proportionality of the appellant’s continued exclusion needs to be considered afresh. Similarly, since the judge’s analysis of the appellant’s ability to meet regulation 9 of the 2016 Regulations involved the making of an error of law, no findings reached by the judge in that context have been preserved. It is necessary for that issue to be determined afresh also.
THE LAW
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The appeal before the First-tier Tribunal was originally brought under section 82(1) of the 2002 Act. We consider that the refusal of the EEA limb of the appellant’s application to revoke the deportation order amounted to the refusal of an “EEA decision” (see regulation 2(1)), such that it attracted a right of appeal under the 2016 Regulations which operated in parallel to the appellant’s section 82(1) right of appeal under the 2002 Act.
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Although the UK has now left the EU and the implementation period came to an end at 11PM on 31 December 2020, this appeal was commenced before then. Pursuant to paragraph 5(1)(b) of Schedule 3 to the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020, the 2016 Regulations continue to apply to these proceedings.
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Regulation 9 of the 2016 Regulations is set out at paragraph 18 of the error of law decision.
Section 32 of the UK Borders Act 2007 (“the 2007 Act”) Act defines those, such as this...
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