Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/01191/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 4 October 2016
On 19 October 2016

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and

Ttk
(ANONYMITY DIRECTION MADE)
Respondent

Representation:

For the Appellant: Mr Diwnycz, Senior Home Office Presenting Officer
For the Respondent: C Warren, instructed by Dicksons, Solicitors

DECISION AND REASONS

1. I shall refer in this decision to the appellant as the respondent and to the respondent as the appellant (as they appeared respectively before the First-tier Tribunal). The appellant, TTK, was born in 1993 and is a citizen of Zimbabwe. In April 2013, the appellant was convicted for an offence of robbery for which he received a prison sentence of three years and six months. In addition, he was sentenced to eight months' imprisonment (consecutively) for breach of a suspended sentence for a previous offence. He appealed to the First-tier Tribunal (Judge Turnock) against a decision of the respondent to refuse him and to refuse his protection on human rights claims. The respondent's decision is dated 9 January 2015. The First-tier Tribunal, in a decision promulgated on 8 August 2016, dismissed the appeal on asylum and humanitarian protection grounds but allowed the appeal under Article 8 ECHR. The Secretary of State now appeals, with permission, against that decision. There was no appeal from the appellant in respect of the dismissal of his asylum/humanitarian protection appeals.
2. The judge dealt with Article 8 ECHR at [94] and following. He recorded that the respondent accepted that the appellant had a daughter and partner in the United Kingdom who was of the view that there was no compelling evidence that the appellant had maintained family life with them. The judge, however, at [96] found that the appellant was in a genuine and subsisting relationship with his partner (E) and their child. He found that the relationship had existed for approximately five years. The child of the couple (H) was born towards the end of 2015. The appellant also has indirect contact with a child of a previous relationship (M) who is now aged 5 years.
3. The grounds of appeal assert the judge failed properly to apply provisions of paragraph 399(a) and (b) of HC 395 (as amended) and also Section 117C of the Nationality, Immigration and Asylum Act 2002 (as amended):
399. This paragraph applies where paragraph 398 (b) or (c) applies if -
(a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and
(i) the child is a British Citizen; or
(ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case
(a) it would be unduly harsh for the child to live in the country to which the person is to be deported; and
(b) it would be unduly harsh for the child to remain in the UK without the person who is to be deported; or
(b) the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen or settled in the UK, and
(i) the relationship was formed at a time when the person (deportee) was in the UK lawfully and their immigration status was not precarious; and
(ii) it would be unduly harsh for that partner to live in the country to which the person is to be deported, because of compelling circumstances over and above those described in paragraph EX.2. of Appendix FM; and
(iii) it would be unduly harsh for that partner to remain in the UK without the person who is to be deported.
117C Article 8: additional considerations in cases involving foreign criminals
(1) The deportation of foreign criminals is in the public interest.
(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(3) In the case of a foreign criminal ("C") who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.
(4) Exception 1 applies where-
(a) C has been lawfully resident in the United Kingdom for most of C's life,
(b) C is socially and culturally integrated in the United Kingdom, and
(c) there would be very significant obstacles to C's integration into the country to which C is proposed to be deported.
(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C's deportation on the partner or child would be unduly harsh.
(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.
(7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.
4. The Secretary of State complains that the judge failed correctly to apply the "unduly harsh" test contained in those provisions. At [111 - 112], Judge Turnock wrote:
111. [Having found the appellant does not face very significant obstacles to his integration into Zimbabwe] I am satisfied the appellant has a genuine and subsisting relationship with a child under the age of 18 who is a British citizen and that it would be unduly harsh for the child either to live in Zimbabwe or to remain in the UK without the appellant. If the child were to be removed to Zimbabwe it would mean a severe curtailment of the benefits which accrue to him as a British citizen and if the appellant were to be removed it would effectively mean the child would be deprived of a meaningful family life with his father.
112. Further I am satisfied the appellant has a genuine and subsisting relationship with a partner who is a British citizen who is settled in the UK. I find that the relationship was formed at a time when the appellant had been granted indefinite leave to remain in the UK and it would be unduly harsh for his partner to live in Zimbabwe taking account of conditions which prevail in that country and her parental responsibilities in this country. It would be unduly harsh for the appellant's partner to remain in the UK without the appellant as that would be effectively end the family life which has been established by them. The Secretary of State observes that the judge has failed to identify any circumstances which could be described as being more than 'uncomfortable, inconvenient, undesirable, unwelcome .....................difficult and challenging' (MAB: para 399; 'unduly harsh') USA [2015] UKUT 00435 (IAC)).
Further, the Secretary of State relies on MM (Uganda) [2016] EWCA Civ 450 at [26]:
For all these reasons in my judgment MAB was wrongly decided by the Tribunal. The expression "unduly harsh" in section 117C(5) and Rule 399(a) and (b) requires regard to be had to all the circumstances including the criminal's immigration and criminal history.
5. The Secretary of State also relies on PF (Nigeria) [2015] EWCA Civ 251 at [43]:
In my judgment, the determination of the First-tier Tribunal did not identify, as it should have done, what were the features of the Appellant's case that amounted to compelling reasons, or were exceptional circumstances, justifying the success of his appeal. Indeed, I would go further and state that I have been unable to identify in the determination findings of fact that could properly be categorised as exceptional, or amounting to compelling reasons for him to be allowed to remain in this country, given the seriousness of his repeated criminal conduct. I fully recognise that if the Judge's factual findings are well founded, there will be a real and damaging impact on his partner and the children; but that is a common consequence of the deportation of a person who has children in this country. Deportation will normally be appropriate in cases such as the present, even though the children will be affected and the interests of the children are a primary consideration. In some cases the family may be able to join the deportee in the country of his nationality, but that was not explored in this case, and I assume was not a real possibility.
6. As recorded above, the Court of Appeal decided that the Tribunal erred in MAB by excluding from the assessment of "unduly harsh" "all circumstances including the criminal's immigration and criminal history." Judge Turnock has not excluded consideration of those latter factors in terms but, equally, he has not explicitly relied upon the judgment of the Court of Appeal in MM. Ms Warren, for the appellant, submitted that Judge Turnock had carried out a very detailed analysis (his decision runs to 22 pages). The judge had addressed in considerable detail the appellant's criminal offending in his discussion of Section 72 of the 2002 Act. Having done so, I she submitted that there was no need for the judge to repeat that analysis in his determination of the appeal on Article 8 grounds.
7. I agree with Ms Warren. There was no suggestion in the decision that the judge has, in assessing whether the circumstances will be "unduly harsh", focussed only upon the effect of the immigration decision on the children. The judge has considered the appellant's immigration history (see the passage of the decision which I have quoted above) and his account of the appellant's offending and of the efforts which the appellant has made to rehabilitate himself is very detailed. I find that Judge Turnock has had all the circumstances in mind when applying the provisions of the 2002 Act and paragraph 399 of the Immigration Rules. The Secretary of State does not suggest that the outcome reached by the judge is perverse on the facts only that the judge committed an error of process in achieving that result. For the reasons I have given, I disagree. The Secretary of State's appeal is dismissed.
Notice of Decision

This appeal is dismissed.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of
their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 10 October 2016

Upper Tribunal Judge Clive Lane