Upper Tribunal (Immigration and asylum chamber), 2023-05-26, IA/14940/2021
| Appeal Number | IA/14940/2021 |
| Hearing Date | 17 April 2023 |
| Date | 26 May 2023 |
| Published date | 12 June 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2022-006000
|
IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2022-006000 |
|
|
First-tier Tribunal No: HU/50144/2020 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 26 May 2023
Before
UPPER TRIBUNAL JUDGE BLUNDELL
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
KAK (SIERRA LEONE)
Respondent
Representation:
For the Appellant: Mr Clarke, Senior Presenting Officer
For the Respondent: Mr Hodson, legal representative, for Immigration Legal Services
Heard at Field House on 17 April 2023
Order Regarding Anonymity
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, I continue the anonymity order which was made by the First-tier Tribunal. No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant or his family members. Failure to comply with this order could amount to a contempt of court.
DECISION AND REASONS
-
The Secretary of State appeals, with the permission of Upper Tribunal Judge Pickup, against the decision of First-tier Tribunal Judge S.L.L. Boyes. By her decision of 22 August 2022, Judge Boyes (“the judge”) allowed the appeal on human rights grounds. To avoid confusion, I shall refer to the parties as they were before the FtT: KAK as the appellant, the Secretary of State as the respondent.
Background
-
The appellant was born in Sierra Leone on 15 April 1990. He entered the United Kingdom with his mother when he was three years old. They arrived at Bristol Airport on 26 November 1993.
-
The appellant’s mother claimed asylum on 12 January 1998. The appellant was named as a dependant on her claim. The asylum claim was refused on 30 October 1998. They applied for Indefinite Leave to Remain in 2002. That application was refused on 22 September 2004. The appellant and his mother were however granted ILR exceptionally, outside the Immigration Rules, on 29 March 2009.
-
The appellant has committed criminal offences in the United Kingdom. He received a conviction for Affray in 2009, which resulted in a non-custodial sentence. On 2 May 2014, however, the appellant was convicted of burglary and was given a sentence of sixteen months imprisonment.
-
The respondent duly contacted the appellant to indicate that she was considering his deportation. He made representations which included a claim that he would be at risk on return to Sierra Leone. Asylum interviews duly took place. The appellant’s asylum and human rights claims were refused and certified under s94B of the Nationality, Immigration and Asylum Act 2002. A deportation order was signed on 4 December 2014.
-
The appellant made further submissions in 2015 but they were found not to meet the test in paragraph 353 of the Immigration Rules. On 2 August 2019, the appellant was issued with a s120 notice, in response to which he made further submissions. On 10 July 2020, the respondent wrote to the appellant to state that she had decided to withdraw the certified decision and the subsequent decision under paragraph 353 as a result of R (Kiarie & Byndloss) v SSHD [2017] UKSC 42; [2017] 1 WLR 2380.
-
On 10 July 2020, the respondent reconsidered the appellant’s protection and human rights claims and refused them by letter. The appellant appealed against that decision to the First-tier Tribunal.
The Appeal to the First-tier Tribunal
-
The appeal was heard by the judge, sitting at Taylor House on 17 March 2022. The appellant was legally represented by a Ms Cole. The respondent was represented by a Presenting Officer. Ms Cole confirmed at the outset of the appeal that the appellant did not wish to pursue the protection limb of his appeal and that the focus was consequently on Article 8 ECHR.
-
The judge heard oral evidence from the appellant and his mother, after which she heard submissions from the advocates. She reserved her decision at the end of the submissions but it subsequently became clear to the judge that the electronic bundles which had been uploaded to the Tribunal’s systems were incomplete. She issued directions for those difficulties to be addressed, and it is the time taken for compliance with those directions which explains a significant part of the delay between the date of the hearing and the date of the judge’s decision.
-
The judge’s reserved decision spans twenty five pages of single-spaced type. It is, on any view, a very thorough and carefully considered judgment. It is structured in the following way.
-
The judge set out the appellant’s immigration history and his antecedents at [3]-[20]. She then turned to his personal circumstances, including his three biological children and two stepchildren in the United Kingdom, at [21]-[29]. The judge summarised the respondent’s decision at [30]-[32] and the appellate proceedings at [33]-[42]. At [43]-[45], the judge set out the documentary evidence which was before her. At [46]-[58], there was a detailed review of the law, including the relevant provisions of primary legislation and the Immigration Rules as well as a number of authorities including SSHD v HA (Iraq) [2022] UKSC 22; [2022] 1 WLR 3784. The judge undertook a detailed consideration of what was said by Lord Hamblen in HA (Iraq), at [51]-[58] of her decision.
-
At [59], the judge commenced the structured analysis required by section 117C of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). She found that the appellant had lived in the UK for more than 28 years but that only 5.5 years had been lawful residence: [72]. He did not meet the criteria for the first statutory exception to deportation, in s117C(4), as a result.
-
In respect of Exception 2, the judge recorded that it was accepted by the appellant that he did not contend that he had a relationship with a qualifying partner: [73]. At [74]-[98], the judge undertook a detailed analysis of the evidence which was said to establish that the appellant continued to enjoy a genuine and subsisting parental relationship with two of his biological children. She found the appellant and his mother to be ‘entirely credible’ in their evidence on this subject: [98]. At [101], she accepted that the appellant enjoyed a genuine and subsisting parental relationship with those two children, despite a ‘break in his involvement in their lives’, after which ‘involvement has only recently resumed’. She accepted that he ‘enriches their lives’ by providing ‘emotional parental support’, notwithstanding the fact that he did not live with them.
-
At [102]-[108], there was a similarly detailed analysis of the best interests of the children and whether it would be unduly harsh on them for the appellant to be deported. Although the judge accepted that the appellant’s deportation would have a detrimental effect upon them and that it would be ‘harsh’, she concluded that the evidence before her did not demonstrate that the statutory threshold was met.
-
Having found that the appellant could not meet the statutory exceptions to deportation, the judge went on to consider whether there were very compelling circumstances over and above those exceptions which sufficed to outweigh the public interest in deportation. She began by directing herself in accordance with s117C(2) of the 2002 Act, that the more serious the offence committed by a foreign criminal, the greater is the public interest in his deportation. At [110]-[114], the judge therefore considered the seriousness of the two offences committed by the appellant. At [115]-[117], the judge considered the appellant’s conduct after conviction. At [118], she reiterated her conclusion in respect of the appellant’s children.
-
Continuing the analysis prescribed by the Strasbourg authorities, at [119]-[124], the judge undertook a detailed analysis of the appellant’s ties to the UK, including his upbringing in this country, the family members who reside here, and the mental health difficulties he had recently encountered. She rejected the respondent’s argument that the appellant was not socially and culturally integrated to the UK, finding instead that he was ‘entirely’ so: [123]. Then, at [125], the judge explained why the appellant would find relocation to Sierra Leone ‘very challenging’ even if those challenges were not sufficient to amount to ‘very significant obstacles’. Finally, at [126], the judge summarised the outcome of the balancing exercise in this way:
The Appellant was convicted of an offence serious enough to justify a custodial sentence of around or just over two years (albeit reduced for a guilty plea). That offence was serious, but not at the most serious end of the scale for reasons that I have provided above. There is a very strong public interest in deporting foreign criminals. Against that I must balance the factors which weigh against the proportionality of deporting the Appellant. I have taken all of the factors that I have identified above in to account. However, two factors in particular weigh heavily in the Appellant’s favour. The first is the...
To continue reading
Request your trial