Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00072/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 2 November 2015
On 10 December 2015

Before

UPPER TRIBUNAL JUDGE PERKINS

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

ROHAN EVERTON MONTGOMERY WILLIAMS
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Miss A Fijiwala, Home Office Presenting Officer
For the Respondent: Mr A Slatter, Counsel, instructed by Jein Solicitors

DECISION AND REASONS
1. I see no need for, and do not make, any order restricting reporting about this case.
2. This is an appeal by the Secretary of State against a decision of the First-tier Tribunal allowing the appeal by the respondent, hereinafter "the claimant", against a decision of the Secretary of State on 2 December 2013 to refuse to revoke a deportation order.
3. The case as a protracted procedural history and I do not see any point in listing every twist and turn in the saga that brings the case before me. The claimant was born in 1974. He has not always behaved in a creditable way and in January 2005, obviously now rather more than ten years ago, he was sent to prison for two years on eight counts of possession of class A drugs with intent to supply.
4. He was given notice of the Secretary of State's intention to make him the subject of a deportation order in May 2005. He appealed the decision, initially successfully, but the decision to allow the appeal was overturned by the Asylum and Immigration Tribunal in May 2006. Nevertheless the claimant did not leave the United Kingdom. It is right to say that some of the time he was in the United Kingdom was with the approval of the authorities because he was a witness for the prosecution in a criminal case but he remained some years after that.
5. In June 2013 he made himself known to the Secretary of State and sought revocation of the deportation order. That application was refused in December 2013 and it is the refusal of that decision that is the subject of the appeal before me.
6. In brief summary the appeal has already been allowed once by the First-tier Tribunal and sent back by the Upper Tribunal. It came before the First-tier Tribunal again in accordance with the Upper Tribunal's decision on 17 August 2015.
7. Much has happened since the deportation order was made, not the least of these things being the claimant now seems to be settled and living responsibly as a family man and he has children who are dependent upon him.
8. The law concerning deportation has changed so that the Rules to be applied now are not the same as the Rules that were applied in December 2013. When the case came before the First-tier Tribunal in August 2015 there was an agreement between the parties about how it should be considered. On that occasion the claimant was represented by very experienced counsel and the Secretary of State represented by a Presenting Officer. As is explained at paragraph 8 of the First-tier Tribunal's decision, it was agreed quite clearly then that "the best course of action would be to allow the appeal as not in accordance with the law and remit the matter to the Home Secretary to take a fresh decision, including for consideration of section 55." That is plainly a reference to Section 55 of the Citizenship Immigration and Borders Act 2009 which in common language, although not strictly the law, requires the best interests of the children to be primary consideration.
9. The First-tier Tribunal Judge did precisely as it was agreed by the parties he should do and he made a decision in accordance with the Secretary of State's concession. That was promulgated on 19 August 2015 and on 1 September 2015 the Secretary of State, having agreed to the disposal in a particular way, sought permission to appeal the decision to do as she had agreed. The thrust of the appeal was that there was nothing wrong in the consideration of Section 55 by the Secretary of State. The fact that the disposal had been agreed before the First-tier Tribunal seemed a matter of complete indifference to the person who settled the grounds of appeal who was neither the Presenting Officer before the First-tier Tribunal nor Miss Fijiwala who, presumably, was expected to defend her colleague's grounds.
10. Before considering whether or not the concession ought to have been made or whether the First-tier Tribunal had identified correctly an error of law I asked for guidance on the proper approach to the concession. Miss Fijiwala clearly had time to consider the position and did not overstate her case when she said she was in difficulties.
11. Mr Slatter referred me to a decision of Carcabek and Bla v SSHD (00/TH/01426) which was decided in May 2000. Although rather old jurisprudence by the standards of this Tribunal it is a decision of the then president, the Honourable Mr Justice Collins, and Mr C M G Ockelton, so it might be thought to be particularly authoritative.
12. I find that the position is as follow. Parties cannot agree the law so concessions on matters of law do not bind anyone. Concessions on fact can be retracted but not without the consent of the Tribunal. Here there was a concession of fact and I do not see any just reason to allow the Secretary of State to resile from the concession that was made. All that will follow from the decision to require the Secretary of State to remake the decision is that there will be an up-to-date decision made in light of the law that is now applicable.
13. I would have thought would have been fair to everyone. It would enable the Secretary of State and, if necessary, the Tribunal in any subsequent appeals, to apply the up-to-date law in a case involving the welfare of quite young children. That seems to be something that is desirable. It is something that was agreed and I see no justice whatever in allowing the Secretary of State to go behind the agreement that she made.
14. The decision of the First-tier Tribunal was in these terms "The appeal is allowed as not being in accordance with the law to the extent that it is remitted to the Home Secretary for a fresh decision". I dismiss the Secretary of State's appeal against that decision. It might be in everyone's interest if she does as the Presenting Officer before the First-tier Tribunal indicated she ought to do.
Notice of Decision
The appeal is dismissed.

Signed

Jonathan Perkins
Judge of the Upper Tribunal

Dated 8 December 2015