Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/00126/2015

THE IMMIGRATION ACTS

Heard at: Manchester
Decision & Reasons Promulgated
On: 16th November 2016
On: 13th January 2017

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

The Secretary of State for the Home Department
Appellant
And

Marlon Williams
(No anonymity direction made)
Respondent

For the Appellant: Mr Harrison, Senior Home Office Presenting Officer
For the Respondent: Mr Nicholson, Counsel instructed by Greater Manchester Immigration Aid Unit

DECISION AND REASONS

1. The Respondent is a national of Jamaica date of birth 3rd July 1992. On the 14th March 2016 the First-tier Tribunal (Designated Judge McClure) allowed his appeal against a decision to remove him from the United Kingdom pursuant to s10 of the Immigration and Asylum Act 1999. The appeal was allowed on Article 8 grounds. On the 19th April 2016 Acting Resident First-tier Tribunal Judge Zucker granted permission to appeal to the Secretary of State. Judge Zucker considered it arguable that the First-tier Tribunal erred in failing to give adequate reasons and in failing to give sufficient weight to the public interest.

Background and Matters in Issue

2. The facts and background are now largely uncontested. Mr Williams claims to have entered the United Kingdom when he was nine years old. He was brought here as a visitor and was left in the care of his grandmother and aunts in Manchester. His father had intermittent involvement with his upbringing. Mr Williams' father was physically abusive towards him and his home life was not stable. Social services had some early involvement and in July 2007 Mr Williams was taken into care. He was then aged just fifteen. At around the same time his father was deported to Jamaica following a conviction relating to Class A drugs. Mr Williams himself committed a series of offences. Between 2007 and 2009 he received seven convictions for offences including robbery, battery and burglary. On the 13th February 2008 social services made a claim for asylum on his behalf. This was unsuccessful but did result in Mr Williams being granted a period of Discretionary Leave (DL), valid from the 21st July 2008 through to the 3rd January 2010. Before that leave expired Mr Williams made an application for further leave to remain. This was refused on the 3rd February 2011.

3. Mr Williams appealed. He had at that point been in the United Kingdom for some nine years, having come here as a young child. He relied on that private life, and what might be termed the compassionate factors in this case. He further submitted that he was in a stable relationship with a British citizen, Miss Naomi Davies. He had been living with her and her family since mid-2010. Having regard to these factors the First-tier Tribunal (Judge Cruthers) allowed the appeal on human rights grounds. In a determination dated 29th March 2011 Judge Cruthers found that Ms Davies had substantial ties to the United Kingdom. He had regard to the evidence that Mr Williams had now turned his life around. He was acting as a mentor to other disaffected young men and had, in the two years before the appeal, made "serious progress" in his education. He had completed a Duke of Edinburgh bronze award and had received numerous certificates for completing various courses. Judge Cruthers weighed against Mr Williams the fact that he had been convicted of a string of offences but taking all of the factors in the round he was satisfied that it would be a disproportionate interference with Mr Williams' Article 8 rights to remove him.

4. A further grant of DL followed. This commenced on the 5th April 2011 and expired on the 4th April 2013.

5. An application for further leave was made on the 3rd April 2013. The Secretary of State responded on the 15th December 2014 by refusing any further leave. It was not accepted that Mr Williams had any protection needs in respect of his potential return to Jamaica. The Secretary of State noted that in allowing the appeal back in 2011 Judge Cruthers had said the following: "the appellant must understand that if he commits any further criminal offences, or fails to use his time in this country constructively (in terms of education and/or employment) then his case for being granted a further period of leave would be very much undermined". The decision maker found no evidence before him that Mr Williams was still in a relationship, or that he had been employed or engaged in education; worse still there was an "impending prosecution for assault and possession of a firearm". In light of these factors the Secretary of State was not satisfied that there would be any breach of Article 8 if Mr Williams were to be removed. In light of the criminality, the Secretary of State was not satisfied that Mr Williams should be given any further periods of DL.

6. The appeal against this decision came before Judge McClure. By that time the Secretary of State had withdrawn her reliance on the allegation about a firearms prosecution, but there was evidence before the Tribunal that since the decision of Judge Cruthers Mr Williams had been convicted of possession of cannabis (in June 2011) and on the 23rd December 2014 he was sentenced to 9 months' imprisonment for assault with intent to resist arrest. The background to that offence was that Mr Williams believed that one of his neighbours had stolen a puppy from him. Mr Williams and Ms Davies (they were in fact still together) had returned to their home to find that one of the puppies that their dog had recently given birth to was missing. Ms Davies was very upset. They made enquiries in their street and independently a number of neighbours told them that another neighbour had gone into their garden and taken one of the puppies. The animal being very young Mr Williams and Ms Davies were concerned that it might die if separated from its mother. Mr Williams went to the house of the neighbour in question and confronted him. the neighbour denied having taken the animal. Mr Williams admits to having been "very worked up". The neighbour called the police. When the police arrived Mr Williams remonstrated with them and protested that his puppy had been stolen by this individual. In a statement provided to Judge McClure Mr Williams accepted that he was angry, that he had resisted arrest and that an officer had been injured as a result. He accepted that he handled the whole affair very badly, and expressed sincere remorse.

7. Judge McClure had the benefit of hearing oral evidence from both Mr Williams and Ms Davies. This was to the effect that they are in a stable relationship of some five years standing and that they have set up home together. They would like to have children when they can afford it. Ms Davies supports them by working full time. Numerous other witnesses provided statements speaking to Mr Williams' character. This included letters from boys who attend the Collyhurst and Moston Lads Club, where they are supported and mentored by Mr Williams. He volunteers at this gym and is described as being "keen to get involved and enthusiastic about working with younger children to give them a positive attitude".

8. Judge McClure was asked to consider two matters in light of all of this evidence. First, whether there would be a breach of Article 8 if Mr Williams were removed to Jamaica. This question was resolved in Mr Williams' favour, and it is the reasoning underpinning that decision that is challenged by the Secretary of State. Second, Counsel asked the Tribunal to assess whether the Secretary of State should in fact have granted Mr Williams Indefinite Leave to Remain (ILR) in line with her own published policy of making such grants once a person has accrued six years' continuous residence with DL. Judge McClure did so, but for reasons explained below, did not accept that the decision was unlawful for a failure to apply policy. There was no cross-appeal lodged but before me Mr Nicholson argued, in the context of the Rule 24 response, that this matter was not properly addressed. I deal with each issue in turn.

Article 8

9. The Secretary of State's grounds of appeal are that the Tribunal erred in the following respects:

i) In failing to "properly apply" section 117B of the Nationality Immigration and Asylum Act 2002;

ii) The Judge's continued references to Mr Williams' private life demonstrate that he placed undue weight on a matter which should, in light of his unlawful/precarious status, only have attracted "little weight";

iii) Ditto in respect of the relationship with Ms Davies, which was formed when his status was precarious;

iv) The Tribunal failed to consider whether Mr Williams should return to Jamaica in order to apply for entry clearance as a partner under Appendix FM

10. I note from these grounds that no issue is taken with the finding that Article 8 was engaged, in respect of both private and family life. The quarrel is with the approach taken to proportionality.

11. The Tribunal specifically directs itself to section 117B at paragraph 66 of the determination. At paragraph 68 consideration is given to the fact that Mr Williams has had various jobs and that he actively sought full time employment, albeit at the date of the appeal unsuccessfully. There does not appear to be recognition of the fact that Mr Williams speaks fluent English but the Secretary of State can hardly have any complaint about that omission. The focus of Mr Harrison's submissions were that the Tribunal failed to adequately balance the public interest against the "little weight" that had to be attached to the private and family life claim.

12. The determination does not, it is true, specifically and separately recite the terms of s117B(1), namely that the maintenance of immigration control is in the public interest. What it does do is make repeated reference to the criminal convictions, and the weight to be attached to those. There is a reason for that. The reason is that the only matter weighing against Mr Williams was those convictions. The Secretary of State had previously recognised that Mr Williams had qualified for leave to remain. There was no attempt - as an adult at least - to circumvent immigration control, and no periods without leave. There was therefore no arguable error in the Tribunal focusing on the convictions in its assessment of the public interest.

13. As for the weight to be attached to Mr Williams' private and family life, Mr Harrison agreed that the injunctions at s117B (4) & (5) did not limit the Tribunal in what it could consider. Of the 14 years that Mr Williams had spent in the United Kingdom (at the date of the hearing), nine had been as a child. The finding that his private life was "substantial" had to be viewed in that light. He did not choose to come here, and had no say in his place of residence. This was plainly a relevant consideration which the Tribunal was entitled to take into account: see Forman (Sections 117A - C considerations) [2015] UKUT 412 (IAC), Miah (section 117B NIAA 2002 - children) [2016] UKUT 131 (IAC). Judge McClure's decision in this respect followed the approach taken by the Upper Tribunal in Miah [at 24]:

"In the case of a child it is possible to envisage, in the abstract, a series of considerations which could potentially outweigh the public interest. These might include matters such as parental dominance and influence; trafficking; other forms of compulsion; and the absence of any flagrant, repeated or persistent breaches of the United Kingdom's immigration regime by the child concerned. Furthermore, the child's age and personal circumstances at the commencement of the period under scrutiny and thereafter will be obviously material considerations. Viewed panoramically, it seems uncontroversial to suggest that an Article 8(2) proportionality exercise which strikes the balance in a manner which overcomes the public interests engaged is more likely to occur in the case of a child than that of an adult".

14. If there was any error in the Tribunal declining to make methodical findings on each sub-section (1)-(5) of the Act, I am not persuaded that it is any way material. It is evident from the reasoning overall that the Tribunal has given careful consideration to the criminal convictions and attached appropriate weight to them. Although describing them as serious matters, the Tribunal was entitled to take the mitigating factors into account, in particular the sad and troubling events of Mr Williams' childhood. It was also entitled to find, as it did, that the public interest was outweighed in this case by Mr Williams' long residence, his commitment to his local community, and the relationships that he has established whilst he grew up here.

15. The fourth ground is not made out. Had this case been purely about the relationship with Ms Davies, and had the Chen approach been specifically pleaded before the Tribunal, then this ground may have had some merit. This case was not however, a failed attempt to gain leave under Appendix FM. The point was that this was a young man who has lived here for most of his 24 years. The family life he shares with Ms Davies was only one of the many relationships he has established in that time, as the numerous letters of support attest. Judge McClure was required, as a matter of law, to consider all of that. He could not restrict his analysis to the fact that Mr Williams is a 'partner' as defined in GEN.1.2.

ILR

16. There is no cross appeal before me on this issue. Since Mr Nicholson's submissions on this matter went to the materiality of any error in respect of Article 8, I agreed to hear them. As can be seen from the above, I did not find any of the Secretary of State's grounds to be made out so any comments that I would have to make about the ILR issue would be obiter dicta.

17. It is not in issue that Mr Williams was granted DL from the 21st July 2008, and that by virtue of successive grants and operation of section 3C of the Immigration Act 1971, he continues to hold that status today. At the date of decision he had held DL for in excess of six years; at the date of this decision it has been eight and a half years. The applicable policy is agreed by the parties to be expressed in the following terms:

"Applicants granted discretionary leave before 9th July 2012:

a) Those who before 9th July 2012 have been granted leave under the DL policy in force at the time will normally continue to be dealt with under that policy through to settlement if they qualify for it (normally after accruing six years' continuous DL). Further leave applications for those granted up to three years' DL before 9th July are subject to active review.

b) Consideration of all further leave applications will be subject to a criminality check and the application of the criminality threshold, including in respect of cases awaiting a decision on a further period of DL on that date.

c) Criminality and exclusion section above"

The criminality and exclusion section simply points out that decision makers must consider the impact of an individual's criminal history before granting any leave.

18. Judge McClure had regard to the fact that these policy statements mirror paragraph 287 of the Immigration Rules. He noted that the Secretary of State had given express consideration to the criminal convictions and the perceived lack of integration when considering whether to grant further DL, and found that even if the decision-maker had directed her mind to whether to grant ILR, the outcome of that reasoning process would have been the same:

"59. However whilst consideration is given to the issue of whether or not the appellant would be entitled to discretionary leave, that has been refused by reason of the appellant's criminal convictions. The fact that the appellant now has six years discretionary leave and should be considered for indefinite leave would merely import consideration of the same factors into the assessment of indefinite leave. Had he made an application for indefinite leave he would have been refused under paragraph 287 and I cannot see that he can be in any better position by reason merely the fact that the entitlement to be considered for indefinite leave accrued subsequently and was not considered in the letter of refusal"

19. The real complaint Mr Nicholson has about this reasoning is foreshadowed in the written submissions made by GMIAU as long ago as February 2015. That is that had anyone bothered to look at the guidance on the "criminality threshold" necessary to deny ILR in these circumstances, it would have been seen that the offences committed by Mr Williams do not meet it. Whether that is true, I cannot say. Neither the Rule 24 response nor the written submissions by GMIAU set out what the criminality threshold is, or rather was at the time. None of the policies reproduced in the papers before me are of assistance. No doubt in assessing the impact of this determination, and that of Judge McClure, the Secretary of State will give careful consideration to her own policies, applicable at the relevant time, and to whether Mr Williams can today be rationally and lawfully denied a grant of indefinite leave in line with those published policies and the terms of the Immigration Rules.

Decisions

20. The determination of the First-tier Tribunal contains no material error of law and it is upheld.

21. There is no order for anonymity.

Upper Tribunal Judge Bruce
12th January 2017

Post Script: Apology

It has taken two months for this decision to be promulgated. That is a delay to be regretted and I extend my apologies to both parties. The reason is that the file was misplaced at the hearing centre and it took some time before it was returned to me.