Upper Tribunal (Immigration and asylum chamber), 2024-01-12, UI-2022-006656
| Appeal Number | UI-2022-006656 |
| Hearing Date | 05 January 2024 |
| Date | 12 January 2024 |
| Published date | 29 January 2024 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2022-006656 (HU/51344/2021)
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2022-006656 |
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First-tier Tribunal No: HU/51344/2021 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
12th January 2024
Before
UPPER TRIBUNAL JUDGE NORTON-TAYLOR
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
JJ
(ANONYMITY DIRECTION MADE)
Respondent
Representation:
For the Secretary of State: Mr E Tufan, Senior Presenting Officer
For Mr JJ: Mr D Sellwood, Counsel, instructed by Wilsons Solicitors LLP
Heard at Field House on 5 January 2024
Order Regarding Anonymity
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, Mr JJ is granted anonymity.
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 Mr JJ. Failure to comply with this order could amount to a contempt of court.
DECISION AND REASONS
Introduction
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For the sake of continuity and ease of reading I shall refer to the parties as they stood before the First-tier Tribunal. Therefore, the Secretary of State is once more “the respondent” and Mr JJ is “the appellant”.
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The respondent appeals with permission against the decision of First-tier Tribunal Judge Gibbs (“the judge”), promulgated on 2 May 2022. By that decision, the judge allowed the appellant’s appeal against the respondent’s refusal of his human rights claim. That claim was a response to a previous decision by the respondent to make a deportation order against the appellant on the basis that he was a foreign criminal following his 2019 conviction for possession with intent to supply Class A and Class B drugs, for which he had been sentenced to 3 years’ imprisonment.
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The appellant is a national of Tanzania who arrived in the United Kingdom at the age of 9 and was granted indefinite leave to remain some 6 years later in 2003. His human rights claim was based on private and family life under Article 8. In respect of private life, he asserted that he had strong ties in the United Kingdom and had no meaningful ties to Tanzania. In respect of family life, the appellant relied on his relationship with a British national partner, Ms X, and their two children, Y (9 years old at the date of the judge’s decision), and Z (6 years old at that time). Ms X suffered from mental health problems and Y had a diagnosis of autism.
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In refusing the appellant’s claim, the respondent initially did not accept that he had a genuine and subsisting relationship with Ms X or the two children. In addition, it was concluded that (assuming there was a genuine and subsisting relationship) the family unit could go and live in Tanzania together, or that a separation would not be unduly harsh. There were said to be no very compelling circumstances in the case. The private life element of the appellant’s case was rejected, it being said that although he had resided in the United Kingdom lawfully for more than half of his life, he was not culturally socially integrated and there were no very significant obstacles to him reintegrating into Tanzanian society.
The judge’s decision
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The judge recorded that by the time of the hearing the respondent accepted the appellant’s genuine and subsisting relationships with Ms X and the two children. Further, the respondent conceded that it would have been unduly harsh for the family members to have accompanied the appellant to live in Tanzania. The key issue was whether a separation would be unduly harsh on Ms X and/or the children, with particular reference to Y.
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The precise contents of the judge’s decision are well-known to the parties and I do not propose to set them out here. I will address relevant aspects when setting out my conclusions and reasons later on. The essence of her decision is as follows. On the evidence, and with particular reliance on the unchallenged reports of Ms Christine Brown, an Independent Social Worker, the judge concluded that it would be unduly harsh on Ms X and the children if the appellant were to be deported: paras 18-20, 23-29. The statutory exception under section 117C(5) of the Nationality, Immigration and Asylum Act 2002, as amended, was satisfied and the appellant’s appeal was allowed on that basis. In light of this, the judge did not reach any conclusions on the private life exception under section 117C(4) or the very compelling circumstances test under section 117C(6).
The grounds of appeal and grant of permission
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I address the respondent’s grounds of appeal in detail when setting out my conclusions and reasons. For present purposes it is enough to say that the challenge is made under the heading of “Making a material misdirection/Lack of adequate reasoning” and that issue is taken with the judge’s assessment of the unduly harsh test in respect of Ms K and Y.
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In granting permission to appeal, First-tier Tribunal Judge CJT Lester said the following:
“1. …
2. The extensive grounds stated that the judge erred in that they: (1) made a material misdirection/lack of adequate reasoning.
3. If the contention of the respondent is correct then there is arguably an error of law.”
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With respect, that is not in my view an adequately expressed grant of permission. The test for permission, as apparently applied in para 3, is wrong. In addition, there is a failure to engage in any way with the substance of the grounds.
Rule 24
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Following the grant of permission, the appellant provided a detailed rule 24 response, dated 24 October 2022.
The hearing
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I do not propose to set out the representatives’ respective submissions in any detail. The submissions made orally have been considered and addressed in my conclusions and reasons, below. In essence, Mr Tufan relied on the unamended grounds of appeal, whilst Mr Sellwood relied on his rule 24 response, the judge’s analysis, and the underlying evidence in the case.
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At the conclusion of the hearing I announced to the parties my decision that the judge had not materially erred in law and that her decision should stand. My reasons for that decision were to follow in writing and I now set these out.
Conclusions and reasons
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There is a plethora of pronouncements and reminders from the Court of Appeal and Upper Tribunal concerning the task of an appellate jurisdiction and the proper approach to the assessment of whether the first instance tribunal/court has committed material errors of law. By way of examples, see Volpi v Volpi [2022] EWCA Civ 464; Fage UK v Chobani UK [2014] EWCA Civ 5; UT (Sri Lanka) v SSHD [2019] EWCA Civ 1095; FN (Burundi) v SSHD [2023] EWCA Civ 1350; and Shizad (sufficiency of reasons: set aside) [2013] UKUT 85 (IAC). In light of these, I bear in mind the need for appropriate restraint before interfering with the decision of the First-tier Tribunal.
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In addition to the above, the present case is an example of one in which it is appropriate to have regard to the underlying evidence before the judge when assessing the adequacy of her conclusions and reasoning: English v Emery Reimbold and Strick [2002] EWCA Civ 605, at paras 11 and 89.
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There has been no properly articulated challenge to the judge’s self-direction on the unduly harsh test. In any event, such a challenge would not have prospered. At para 22, she sets out in full paras 51-53 and 56 of the judgment of Underhill LJ in HA (Iraq) v SSHD [2020] EWCA Civ 1176. Those passages refer to the “elevated” nature of the unduly harsh threshold, together with the crucial need to adopt a child-focused approach based on the particular circumstances of the case. It is to be noted that the judge heard and decided the appellant’s case before the Supreme Court handed down its judgment in HA (Iraq) v SSHD [2022] UKSC 22 on 22 July 2022. Nothing in the Supreme Court’s judgment undermined what was said by Underhill LJ in the Court of Appeal. Thus, there is no misdirection in law by the judge.
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There has been no clearly expressed perversity challenge put forward by the respondent in this case.
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With the points made in the preceding two paragraphs in mind, I have no hesitation in rejecting the poorly-articulated purported challenges as set out in paras 1-5 of the grounds of appeal.
In respect of para 1, the first sentence refers to the judge’s reasoning, but then goes on to seemingly assert an implied perversity challenge. Even putting to one side the lack of clarity, the complaint is plainly nothing more than a disagreement and comes nowhere near establishing an irrational conclusion by the judge. In addition, reference to SSHD v PG (Jamaica) [2019] EWCA Civ 1213 and a quotation from paragraph 46 of that judgment adds nothing to the respondent’s case. Unfortunately, this is not the first occasion on which I have felt compelled to comment on the respondent’s use of this judgment (and indeed others) in grounds of appeal. The respondent appears to regularly rely on PG (Jamaica) as a form of...
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