Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/02401/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
On 27 July 2016
On 15 September 2016

Before

UPPER TRIBUNAL JUDGE CANAVAN

Between

[I S]
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms G. Kiai, Counsel instructed by Wilson Solicitors LLP
For the Respondent: Mr E. Tufan, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant appealed against the respondent's decision to make a deportation order following his conviction for importation of a class A controlled drug. The appellant was sentenced to 20 years imprisonment reduced to 17 years on appeal.

2. First-tier Tribunal Judge Miller ("the judge") dismissed the appeal in a decision promulgated 25 May 2016. The appellant seeks to appeal the decision on the following grounds:

(i) In rejecting the probation officer's assessment of the risk of reoffending the judge failed to take into account other material evidence, including an expert report from a forensic psychologist who assessed the appellant to be at "very low risk of reoffending". As such, the judge's assessment of his rehabilitation was also flawed.

(ii) The judge failed to take into account significant expert evidence in the form of an independent social work report. The social worker strongly recommended that it was in the best interests of the appellant's child for his father to remain in the UK and that deportation would "have devastating effects on [S's] welfare". The report also made an assessment of his wife's position and concluded that "recurrent bouts of depression and a sense of hopelessness could lead to self-harming behaviour or suicide" in light of her history of "severe and lengthy depression".

Decision and reasons

3. After having considered the grounds of appeal and oral arguments I satisfied that the First-tier Tribunal decision involved the making of an error on a point of law.

4. Mr Tufan accepted that the judge did not conduct an in depth analysis of the evidence. I acknowledge that there is some force in Mr Tufan's submission that the very serious nature of the offence is such that any failure to consider the evidence was unlikely to make any material difference to the final outcome of the appeal. The significant weight to be placed on the public interest would be difficult to displace without evidence of very compelling circumstances indeed.

5. As a general principle it is incumbent on a judge to make findings in relation to evidence that is material to a proper assessment of the appeal. The judge acknowledged that deportation would have an enormous impact on the lives of all of the appellant's family members and would add to their real distress [69].

6. However, no meaningful assessment was given to the independent social worker report which, on the face of it, raised compelling circumstances relating to the effect of deportation on the appellant's son and his wife. If the evidence was not phrased in such strong terms it is likely that I would have found no material error of law, but the evidence appears to raise compelling circumstances that should have been taken into account. Whether those compelling circumstances are sufficiently compelling to outweigh such a serious conviction is a matter for assessment by a judge. Ultimately, it may be that the conviction is such a serious matter that it still compels his deportation.

7. The appellant has lived in the UK since 1997 and had lawful leave to remain at the date of conviction. His family members are long settled in the UK. The human rights issues raised by the expert evidence were sufficiently important to require some engagement. Despite the serious nature of the conviction the appellant was entitled to have the evidence produced in support of the appeal considered and weighed in the balance. It was insufficient for the judge to merely state that he had taken into account all the evidence "including that to which I have not made specific reference" [75].

8. The judge's rejection of the probation officer's assessment of risk of reoffending without considering material evidence contained in the forensic psychology report also amounts to an error [74]. If this had been the only criticism I would have found that it insufficient to set aside the decision because the risk of reoffending is unlikely to be a significant factor in this case given the very serious nature of the offence. The public interest may well compel deportation regardless of the risk of reoffending. However, I find that the judge's failure to consider two significant pieces of expert evidence is sufficiently serious to conclude that the decision should be set aside.

9. I have considered the submissions regarding the forum for remaking the decision. Where possible a decision will normally be remade in the Upper Tribunal. I conclude that it would be difficult to place two significant pieces of evidence in context without having heard from the witnesses. Whether the circumstances are sufficiently compelling must be assessed holistically. For this reason I find that it is appropriate to remit the case for a fresh hearing.

DECISION

The First-tier Tribunal decision involved the making of an error on a point of law

The appeal is remitted to the First-tier Tribunal for a fresh hearing

Signed Date 14 September 2016

Upper Tribunal Judge Canavan