Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00088/2013

THE IMMIGRATION ACTS

Heard at Nottingham
Determination Promulgated
on 11th June 2013
On 12 June 2013

Before

UPPER TRIBUNAL JUDGE HANSON

Between

JEVAUGHAN OMARO BROWN
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr Goldborough of Cleveland & Co Solicitors.
For the Respondent: Mrs K Heath Senior Home Office Presenting Officer.

DETERMINATION AND REASONS

1. This is an appeal against a determination of a panel of the First-tier Tribunal composed of Designated Judge Coates and Mr G H Getlevog (hereinafter referred to as ‘the Panel’) who in a determination promulgated on the 27th February 2013 dismissed the appellants appeal against the order for his deportation from the United Kingdom.

Discussion

2. The first ground of appeal claims the Panel erred in failing to consider paragraphs 398 and 399A of the Immigration Rules in force at the date of the hearing so far as they relate to the facts of this appeal.

3. The respondents Rule 24 Reply, dated 4th April 2013, and paragraph 10 of the determination record that at the commencement of the hearing it was stated that the only issue was the proportionality of removal under Article 8 ECHR, indicating the reason the Panel did not consider the Rules was because the appellant’s representative, Mr Goldborough, did not ask them to. This is disputed before me. The record of proceedings taken by the Panel has an endorsement in the following terms:

“Issue is Art – 8”.

4. Mrs Heath confirmed that the Presenting Officer, Mr Singh, also noted that the appeal “centred around Article 8”. What there is no confirmation of is that the acceptance that main issues was Article 8 is an acknowledgement it was restricted to Article 8 ECHR only and not Article 8 as incorporated into the Immigration Rules. In light of the lack of clarity/ambiguity in the record relating to the scope of the hearing and the submission by Mr Goldborough that there was no concession in relation to the Rules, the finding by the Panel that the issues in the appeal were limited to Article 8 ECHR only, and their failure to determine the Article 8 elements under the Immigration Rules too, is infected by an error of law material to the decision to dismiss the appeal.

5. I set the determination aside and proceed to remake the decision.

6. The amendment to the Immigration Rules in force from 12th July 2012 was to reflect the Secretary of States views on how Article 8 should be interpreted. Paragraph 399A, which is relevant to this appeal, states a person can succeed under these provisions if:

(b) the person is aged under 25 years, he has spent at least half of his life living continuously in the UK immediately preceding the date of his immigration decision (discounting any periods of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required the leave the UK.

7. It is a preserved finding that the appellant arrived in the UK with his mother at the age of seven. He was nineteen years old at the date of the decision and so had lived in this country for over twelve years at that time, over half his lifetime. The respondent considered the provisions of the Rules in the reasons for deportation letter and found that notwithstanding the appellant’s ability to satisfy this part of the rule he could not succeed as he continued to have ties to Jamaica. On page 11 of the letter it is stated:

“It is not considered that there are no ties to Jamaica. You spent the first seven years of your life in that country and came to the United Kingdom and lived with your mother and step-father who are of Jamaican origin. As the language spoken in Jamaica is English, it cannot be said that there would be any language barrier.”

8. The question of what constitutes ties to a home country was considered by the Upper Tribunal in Ogundimu (Article 8 – new rules) Nigeria [2013] UKUT 60 (IAC) in which the Tribunal said that the natural and ordinary meaning of the word ‘ties’ in paragraph 399A of the Immigration Rules (HC194) imports a concept involving something more than merely remote or abstract links to the country of proposed deportation or removal. It involves there being a connection to life in that country. Consideration of whether a person has ‘no ties’ to such a country must involve a rounded assessment of all of the relevant circumstances and is not to be limited to ‘social, cultural and family’ circumstances [123-125].

9. There is no evidence that such ties exist and the finding that they do in the refusal letter appears to be based upon a view taken by the respondent, and disapproved in Ogundimu, that persons with the most minimal links to the country of proposed removal is sufficient.

10. I find on the evidence that the appellant has discharged the burden of proof upon him to the required standard to prove he is able to meet the requirements of paragraph 399A (b) and so on the basis of the Secretary of States own interpretation of the law in relation to this area the appeal must be allowed. I have no discretion to depart from the Rules.

Decision

11. The First-tier Tribunal materially erred in law. I set aside the decision of the Panel. I remake the decision as follows. This appeal is allowed.

Anonymity.

12. The First-tier Tribunal did not make an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

Signed……………………………………………….
Upper Tribunal Judge Hanson

Dated the 11th June 2013