Upper Tribunal (Immigration and asylum chamber), 2023-11-23, UI-2023-003241
| Appeal Number | UI-2023-003241 |
| Hearing Date | 31 October 2023 |
| Date | 23 November 2023 |
| Published date | 08 December 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal No: No: UI-2023-003241
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2023-003241 First-tier Tribunal No: HU/56206/2022 LH/02255/2023 |
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THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 23 November 2023
Before
DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
MR RECEP COBAN
(NO ANONYMITY ORDER MADE)
Respondent
Representation:
For the Appellant: Ms R. Arif, Senior Home Office Presenting Officer
For the Respondent: Ms. S. Khan, counsel instructed by Parker, Rhodes, Hickmott
Heard at Birmingham Civil Justice Centre on 31 October 2023
DECISION AND REASONS
1. This is an appeal by the SSHD against a decision of First tier Tribunal Judge Hillis who allowed the appeal of the Respondent against a decision to deport him.
2. The Respondent, to whom I shall refer as the Claimant, is a national of Turkey born on 17 July 1987. On 7 November 2011 he married a British citizen in Turkey, who gave birth to a daughter in 2012. On 22 November 2013 the Claimant entered the UK. His second daughter was born in 2015 and on 5 November 2015 he was granted 30 months leave to remain on the basis of his family life, on the ten year route. He and his wife divorced in 2016.
3. The Claimant met another woman, Ms B and they began cohabiting in 2017. In October 2018 the Claimant pleaded guilty to three offences of fraud and four offences of perverting the course of justice and he was sentenced to 10 months imprisonment.
4. A decision to deport the Claimant was made and his human rights application was refused and the appeal was dismissed in a decision and reasons of First tier Tribunal Judge Malik. The deportation order was signed on 15 October 2019.
5. On 18 November 2020, further submissions were made in support of a fresh human rights claim, however, in a decision dated 26 April 2021 the SSHD refused to revoke the deportation order. On 7 March 2022 the Claimant’s partner gave birth to a daughter. Further submissions were refused with a right of appeal on 30 August 2022, which the Claimant exercised on 12 September 2022.
6. The appeal came before First tier Tribunal Judge Hillis for hearing on 29 June 2023 when the Claimant and Ms B attended and gave evidence. In a determination promulgated on 13 July 2023 the appeal was allowed on the basis that the Claimant did not fall within the definition of foreign criminal but that in any event it would be unduly harsh on his three children for him to deported and the decision to deport him was disproportionate.
7. The SSHD sought permission to appeal, in time, on the basis of the following grounds:
“3. It is submitted that the FTTJ failed to direct himself to, and apply, the elevated threshold (as established in precedent caselaw) when considering this issue.
4. In HA (Iraq), in which judgment was given on 20 July 2022, the Supreme Court found (at [41]) that, in considering whether the effect of deportation would be unduly harsh, the decision-maker should adopt this self-direction:
“... ‘unduly harsh’ does not equate with uncomfortable, inconvenient, undesirable or merely difficult. Rather, it poses a considerably more elevated threshold. ‘Harsh’ in this context, denotes something severe, or bleak. It is the antithesis of pleasant or comfortable. Furthermore, the addition of the adverb ‘unduly’ raises an already elevated standard still higher.”
Having given this self-direction, and recognised that it involves an appropriately elevated standard, the Supreme Court found at [44]) that it is for the decision-maker to make an informed assessment of the effect of deportation on the qualifying child or partner and to make an evaluative judgment as to whether that elevated standard has been met on the facts and circumstances of the case before them
5. It is acknowledged that the appellant has submitted a social worker’s report, dated 15 November 2022, from Lynn Coates, regarding her views on the likely effect deportation will have on both children who are described as having a ‘positive relationship’ and ‘strong bond’ with their father. However, there has been inadequate analysis by the FTTJ as to what the consequences for these children would be currently, nor what the effects of future ongoing separation might be, given that their mother is their primary carer and the fact that the appellant travelling a ‘significant distance’ weekly to see them is not of itself an exceptional circumstance, to be with his children. There is no other independent evidence aside from the social worker’s report to indicate that the children will be so detrimentally impacted which denotes severe’ or ‘bleak’.
Making a material misdirection of law – public interest
6. It is submitted that there is a public interest in deporting the appellant even though he does not fall within the definition of ‘foreign criminal’ [25], he had, none the less, committed a serious crime sufficient to warrant a custodial sentence. The FTTJ failed to provide any assessment regarding the public interest in line with the statutory framework s117B, in the proportionality exercise given that the appellant committed offences which plainly weigh in favour of his deportation but which the FTTJ has minimised at [15], with reference to the passage of time, lack of re-offence in that time and forming a new relationship with his current partner [24]. Of relevance which the FTTJ failed to consider was the fact that the appellant has established his new relationship having had no lawful basis to do so, his appeal rights having been exhausted in his previous appeal on 01 August 2019, with the expectation that he should leave the UK.
Making a material misdirection of law - procedural irregularity
7. It is submitted that the Presenting Officer (PO), representing the Secretary of State at this appeal, raised some concerns which may not have afforded her a fair opportunity to advance her case, the details of which are attached in the PO note of 30 June 2023.
8. The FTTJ had interrupted the PO’s line of questioning the appellant during cross examination on relevant matters on account that it was viewed by the FTTJ as reflecting badly on the appellant’s character.
9.The appellant’s representative was permitted to interrupt the PO mid questioning the appellant.
10. It appeared that the FTTJ was already minded to allow the appeal.
11. Furthermore, owing to the PO arriving late to Court, on arrival, the PO found the FTTJ and representative were discussing the case.
12. All these matters indicate procedural irregularities have taken place which sets a tone of unfairness and lack of impartiality against the Secretary of State’s position in line with the decision of the Upper Tribunal –
Tribunal decision (tribunalsdecisions.service.gov.uk), where it is stated : (i)
‘Indications of a closed judicial mind, a pre-determined outcome, engage the appearance of bias principle and are likely to render a hearing unfair.”
8. Permission to appeal was granted by First tier Tribunal Judge Grimes in a decision dated 9 August 2023 in the following terms:
“2. It is arguable, as contended in the second ground, that the judge erred in failing to have regard to the statutory considerations in section 117B of the Nationality, Immigration and Asylum Act 2002 in assessing the public interest in the proportionality exercise in this case.
3. It is further arguable, as contended in the third ground, that the judge made a procedural irregularity in his conduct of the case as set out in the statement of the Presenting Officer (undated) uploaded onto the case management system on 7 August 2023.
4. The submission in the first ground that the judge failed to direct himself to the elevated threshold is interconnected with the grounds set out above.”
9. On 3 October 2023, the note dated 30 June 2023 from Ms S Tasnim, the Presenting Officer at the hearing before the First tier Tribunal was uploaded to the MyHMCTS system. On 30 October 2023, a rule 24 was lodged on behalf of the Claimant which included a witness statement from Mr Christopher Cole, solicitor, who had conduct of the hearing on 29 June 2023 and a typed copy of his record of proceeding.
Hearing
10.. At the hearing before the Upper Tribunal Mr Cole attended in order to give evidence. I asked Ms Arif if she intended to call Ms Tasnim to give evidence in line with her note of 30 June 2023 and whether a witness statement had been prepared in line with the guidance of the former President of the Upper Tribunal in BW (witness statements by advocates) Afghanistan [2014] UKUT 00568 (IAC). Ms Arif said no witness statement had been prepared but she would endeavour to contact Ms Tasnim to see if she might be available to attend the hearing. In the event, this did not prove possible as Ms Tasnim was working from home.
11. I considered whether the hearing should be adjourned in order for Ms Tasnim to attend, as submitted by Ms Arif, however, this was strongly opposed by Ms Khan on behalf of the Claimant on the basis that it was the SSHD’s appeal and that she could have attended if she wished and because the Claimant was privately funding his appeal and should...
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