Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00181/2015

THE IMMIGRATION ACTS

Heard at : Field House
Decision & Reasons Promulgated
On : 13 January 2017
On : 17 January 2017

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

AB
(anonymity direction made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr R Khubber, instructed by JCWI
For the Respondent: Mr S Kotas, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant appeals, with permission, against the decision of the First-tier Tribunal dismissing his appeal against the respondent's decision of 9 August 2015 to refuse his human rights claim and to refuse to revoke a deportation order previously made against him on 26 November 1999.

2. The appellant is a citizen of Morocco, born on 21 January 1963. His immigration history is long and protracted but I shall endeavour to summarise it as follows.

3. The appellant arrived in the UK on 12 May 1991 with leave to enter as the spouse of a British national and was granted indefinite leave to remain on that basis on 5 May 1992. In May 1994 his marriage was dissolved. On 18 September 1995 he was convicted of indecent assault and was sentenced to 7 years' imprisonment and recommended for deportation. He served four years of his sentence. He unsuccessfully appealed against a decision to deport him and on 26 November 1999 a Deportation Order was made against him. He was deported from the UK on 8 June 2000.

4. On 25 December 2000 the appellant was refused leave to enter the UK as being in breach of the conditions of the Deportation Order. He was granted temporary admission but absconded and remained in the UK in breach of the Deportation Order.

5. In 2001 the appellant entered into a relationship with AS, a dual Irish/British national and they had two children together, LB born on 3 April 2005 and AB born on 12 March 2006. AS also had a daughter from a previous relationship, ALS, born on 22 April 1997. On 26 June 2006 the appellant was detained by the immigration authorities following a domestic dispute between himself and AS. He was served with removal papers. On 4 July 2006 he made an application for leave to remain on Article 8 grounds on the basis of his relationship with a British national. The application was refused and the appellant appealed against that decision. His appeal was dismissed on 23 November 2006. The appellant then made an application for an EEA residence card as the partner of an EEA national, but that application was refused in April 2007 and the respondent set removal directions on 25 April 2007 for the appellant's removal from the UK. The appellant appealed against that decision and his appeal was dismissed on 1 October 2007. The removal did not take place.

6. On 3 June 2008 the appellant applied for a certificate of approval to marry his partner. They were married on 14 September 2009. In July 2010 the appellant made a further application for an EEA residence card on the basis of his marriage to AS. The application was refused on 28 September 2010. The appellant appealed to the First-tier Tribunal and his appeal was dismissed on 21 April 2011 and was subsequently upheld by the Upper Tribunal in February 2012, finding that AS had no rights under EU law and that the appellant could not, therefore, claim any derivative right to a residence certificate through her. That decision was in turn upheld by the Court of Appeal in December 2012 in the case of Harrison (Jamaica) & AB (Morocco) v Secretary of State for the Home Department [2012] EWCA Civ 1736. Removal directions were set to remove the appellant to Morocco on 5 November 2013 and he was detained pending removal. He petitioned the European Court of Human Rights to place a stay on his removal pursuant to Rule 39, but was unsuccessful.

7. The appellant then made a request on 29 October 2013 for revocation of the deportation order previously made against him. On 4 November 2013 the respondent rejected the appellant's submissions and refused to revoke the deportation order. On 5 November 2013 the appellant lodged a judicial review claim in the Upper Tribunal to challenge the respondent's decision. Permission was refused on the papers and the appellant then renewed his application to an oral hearing. He made further submissions to the respondent, relying on an expert report from an independent social worker, Mr Peter Horrocks. The respondent then made a further decision on 6 February 2014, refusing the appellant's application and certifying his human rights claim and the decision to revoke the deportation order as clearly unfounded under section 94(2) of the Nationality, Immigration and Asylum Act 2002. A supplementary decision was made by the respondent on 8 May 2014. The appellant amended his judicial review grounds to challenge those decisions and in a judgment handed down on 27 April 2015 Upper Tribunal Judge Rintoul in AB, R (on the application of) v Secretary of State for the Home Department (IJR) [2015] UKUT 352, quashed the certification of the appellant's claim.

8. The respondent then withdrew the decisions of 6 February 2014 and 8 May 2014 and reconsidered the appellant's application to revoke the deportation order. In a decision of 9 August 2015 the respondent refused the appellant's human rights claim and refused to revoke the deportation order, but gave him an in-country right of appeal against that decision. That is the appeal relevant to these proceedings.

9. In the decision of 9 August 2015, the respondent considered the expert report from the independent social worker, Mr Peter Horrocks, and the decisions of the First-tier Tribunal and Upper Tribunal in the appellant's appeal in 2011/2012, noting Mr Horrocks' view about the detrimental effect that the appellant's deportation would have on his two children and his step-daughter, and on his wife who suffered from mental health problems and had in the past threatened suicide. The respondent concluded that there were no very compelling circumstances outweighing the public interest in deporting the appellant or in revoking the deportation order made against him on 26 November 1999.

10. The appellant then appealed against that decision and his appeal was heard by Designated First-tier Tribunal Judge Peart on 12 September 2016. An adjournment application was made on behalf of the appellant, in order for lawyers to be instructed to apply for contact with his children, further to the breakdown of his marriage, and in order to await the outcome of the Supreme Court judgment on Article 8. The application was refused, with the Tribunal noting that no contact application had been made to the family courts and no matrimonial solicitors instructed, despite the appellant having lived apart from his family since April and being denied contact with his children since July. The Tribunal heard from the appellant who gave evidence as to how he had a close relationship with his children and with his step-daughter whom he regarded as his own daughter. He told the Tribunal that prior to his marriage break-down and moving out of the matrimonial home in April he had been actively involved in the children's lives. He said that he had only one sibling, a sister, remaining in Morocco and he did not get on well with her, and the rest of his family lived elsewhere. He was currently living with a friend. The Tribunal also considered a statement given by AS on 25 October 2013 prior to the marriage break-down and the independent social worker's report prepared in December 2013, giving the appellant the benefit of the doubt as to his relationship with his children.

11. Judge Peart found that the best interests of the children were to remain with their mother and have contact with their father and he accepted that it was not in their best interests for the appellant to be deported. However, having considered all other matters he concluded that that did not amount to very compelling circumstances outweighing the public interest in the appellant's deportation and he did not consider that the impact of his deportation on the children would be unduly harsh. He dismissed the appeal on all grounds.

12. The appellant sought permission to appeal Judge Peart's decision to the Upper Tribunal on the grounds that he had failed to apply relevant guidance set out in the Strasbourg jurisprudence; he had misdirected himself on the relevance of rehabilitation and post-offending conduct; he had failed to consider the relevance of the respondent's delay in removal as relevant to the public interest; he had failed to provide adequate reasons for considering that the appellant could relocate to Morocco; and he had misapplied the undue harshness/ compelling circumstances test.

13. Permission to appeal was initially refused by the First-tier Tribunal, but was subsequently granted on 21 November 2016 by Deputy Upper Tribunal Judge Mailer on the grounds that the judge had arguably failed to have proper regard to the guidance contained in the Strasbourg jurisprudence.

Appeal hearing and submissions

14. The appeal came before me on 13 January 2017.

15. Mr Khubber made lengthy submissions expanding upon the grounds of appeal. He relied upon the case of NA (Pakistan) v Secretary of State for the Home Department & Ors [2016] EWCA Civ 662 in so far as it referred at [38] to the significance of Strasbourg jurisprudence and submitted that Judge Peart had failed to give consideration to the relevant factors set out in cases such as Uner v. The Netherlands - 46410/99 [2006] ECHR 873 which ought to have formed part of the proportionality balancing exercise. There had been a failure to consider the various factors in the appellant's favour, such as the lack of subsequent offending, the appellant's lengthy absence from Morocco and lack of ties to that country, the adverse impact of deportation on the children, the appellant's compliance with immigration control since 2006, and the delay by the Home Office in carrying out deportation action. Mr Khubber submitted, with respect to ground two, that the judge's approach to rehabilitation was wrong and that he had failed to consider the relevant issue which was the future risk of re-offending, and the fact that there had been no re-offending. As to the third ground, Mr Khubber submitted that the judge had referred to windows of opportunity for the Home Office to remove the appellant but had not taken the respondent's inaction into account in the balancing exercise and had only reacted to the appellant's own actions without taking any initiative. As to the fourth ground, Mr Khubber submitted that the judge's conclusion on relocation was inconsistent with his recording of the evidence and that his finding, that the appellant could turn to relatives for support in Morocco, was inconsistent with the appellant's evidence as to his lack of ties. With regard to the fifth ground, Mr Khubber submitted that the judge had misapplied the unduly harsh/ compelling circumstances test. He had failed to appreciate the strong basis for the children's best interests in the appellant not being deported and the extent of the adverse impact that his deportation would have on them. Mr Khubber referred to the two new Supreme Court cases, Hesham Ali (Iraq) v Secretary of State for the Home Department [2016] UKSC 60 and Makhlouf v Secretary of State for the Home Department (Northern Ireland) [2016] UKSC 59. He submitted that the judge had erred by considering the immigration rules to be a complete code in deportation cases, when the Supreme Court in Ali had found that not to be the case. He had erred by considering only the public interest and by failing to consider the other relevant factors, including in particular the best interests of the children.

16. Mr Kotas submitted that, on the contrary, the judge had considered all relevant factors and included all the factors set out in the Strasbourg jurisprudence in Uner. The judge was fully aware of the appellant's post-offending conduct. Mr Kotas relied on the cases of Danso v Secretary of State for the Home Department [2015] EWCA Civ 596, PF (Nigeria) v The Secretary of State for the Home Department [2015] EWCA Civ 251 and The Secretary of State for the Home Department v AJ (Zimbabwe) [2016] EWCA Civ 1012 in regard to the weight to be attached to rehabilitation and post- offending conduct. Mr Kotas submitted that the judge had properly considered the delay in taking action against the appellant and the question of the appellant's integration into Morocco and had not misapplied the unduly harsh and very compelling circumstances test. The judge had taken the appellant's case at its highest and had made no errors of law.

17. In reply, Mr Khubber reiterated the points previously made.

Consideration and findings.

18. It is the appellant's case that Judge Peart's decision elevated the public interest consideration, considering the immigration rules as a complete code, and failed to conduct a proper proportionality balancing exercise taking into account relevant factors set out in the Strasbourg jurisprudence. However I do not find myself in agreement with that assessment of the judge's decision. On the contrary, I consider that the judge undertook a full and careful consideration of all relevant factors and took a particularly generous approach to the appellant's circumstances by considering his case at its very highest and giving weight to previous evidence, such as his wife's statement and the independent social worker's report, which was favourable to the appellant.

19. Whilst Mr Khubber submits that the judge failed to follow the guidance in the case of NA, it is plain from his decision at [52] that he had full regard to the findings in that case and I see nothing in his decision suggesting that he did not appreciate and follow the approach set out at [38] of NA. Nowhere in that paragraph or any other case does it state that there has to be specific reference and citation of Strasbourg jurisprudence and I reject Mr Khubber's submission that there was a failure by the judge to consider such matters either in substance or in form. On the contrary each of the factors set out in Boultif v Switzerland - 54273/00 [2001] ECHR 497 and reproduced in Uner at [57] and [58], so far as they were relevant to the appellant's case, were clearly and cogently addressed by the judge. It is relevant to note, in any event, that Mr Khubber's submission as to the weight to be attached to the Strasbourg jurisprudence has to be seen in the light of the Court of Appeal's findings in AJ (Zimbabwe) at [47]:

"So does its reliance on the Strasbourg authorities in this field. Although they have some relevance in helping to identify potentially relevant factors, tribunals will be in error if they apply the principles without recognising that the UK has chosen to put a heavy premium on the removal of foreign criminals. As Jackson LJ pointed out in NA (Pakistan) para.39, it is for each state to determine what weight to give to the public interest in deporting foreign criminals, and accordingly article 8 assessments may vary from state to state even where the factual circumstances are essentially the same. The general framework of Strasbourg law as established in cases such as Maslov cannot simply be slavishly applied. The premise of that jurisprudence departs from the UK approach in two important respects. First, it does not give the same significant weight to the need for deporting foreign criminals as the UK does; and second, it sees the public interest principally in terms of the potential damage caused by the particular individual re-offending, whereas that is merely an element - and by no means even the most important element - of the relevant public interest as perceived in the UK. Applying the criteria in Maslov without modifying them to take account of the particular way in which the UK views the public interest, fails to view the article 8 assessment through the lens of the Immigration Rules and will cause tribunals to go astray, as in this case."

20. The factors set out in Strasbourg jurisprudence to which Mr Khubber referred in particular in his grounds and submissions as not having been considered by the judge included the lack of post-offending adverse conduct, the existence of positive conduct, the isolated nature of the offence, compliance with immigration control since offending and delay in removal action by the authorities. However those were plainly matters to which the judge gave consideration. At [61] the judge considered the appellant's immigration history; at [62] he considered the respondent's delay or inaction in removing him when the opportunity arose; at [63] he considered the isolated nature of the offending, the length of time that had since passed and the lack of further offending; at [64] he considered the appellant's compliance with immigration control since 2006; and at [65] and [66] he considered the appellant's ties to the UK and Morocco. At [67] he considered those matters again in his conclusion. The best interests of the appellant's children and step-daughter were considered by the judge at length at [55] to [57] and at [70] to [72]. I therefore find no merit in Mr Khubber's submission that the judge erred by failing to consider relevant matters in assessing proportionality.

21. Neither do I consider that there was any misdirection by the judge in his consideration of rehabilitation and post-offending conduct. It is clear from his findings at [63] that the judge appreciated the distinction in the significance of rehabilitation in EEA and non-EEA cases and he relied upon the judgment in PF (Nigeria) in that respect. I do not find merit in the assertion in the grounds, and in Mr Khubber's submission, that the judge failed to appreciate and take into account the appellant's positive conduct and lack of re-offending. That was a matter to which he clearly gave consideration at [63], but there was no requirement for him to place any more weight upon that factor than he did. As Mr Kotas submitted, that was a matter specifically considered by the Court of Appeal in Danso, at [20], and AJ (Zimbabwe) at [47], and the judge's consideration of the matter was consistent with the approach taken in those cases.

22. With regard to the third ground, it was Mr Khubber's submission that the respondent had had an opportunity to remove the appellant between 2007 and 2009 and from 2013 but failed to do so and that the judge had understated the respondent's inaction and delay in the balancing exercise. However the judge fully considered the matter at [62] when he referred to the "windows of opportunity". Mr Kotas' submission was that the idea of the appellant entering the UK in breach of a deportation order and then criticising the respondent for failing to make sufficient efforts to remove him was unpalatable. I agree. The judge was perfectly entitled to place the weight that he did upon the matter at [62]. The same can be said of the assertion that the judge failed to give weight to the appellant's compliance with immigration control since 2006, which the judge properly considered and addressed at [64].

23. As for the assertion that the judge erred in his consideration of the matter of relocation to Morocco, I see no reason why the judge was not entitled to conclude at [66] that the appellant would have relatives to turn to for support in Morocco, or why such a conclusion was inconsistent with his findings at [30]. In any event the question of whether or not the appellant had family remaining in Morocco was not a decisive matter in considering whether he could reintegrate in Morocco and the judge was perfectly entitled to conclude that there were no very significant obstacles to his integration, as he did, for the reasons given, at [69(c)].

24. The final ground of appeal is that the judge misapplied the undue harshness/ compelling circumstances test. However, again, I find no merit in the grounds. There is no basis whatsoever for the submission that the judge focussed only on the public interest, and unduly elevated the public interest, without taking account of other relevant factors. On the contrary, the judge gave detailed consideration to whether the appellant's separation from his children was unduly harsh, applying the relevant approach in KMO (section 117 - unduly harsh) [2015] UKUT 543 and MM (Uganda) & Anor v Secretary of State for the Home Department (Rev 1) [2016] EWCA Civ 617 and giving full consideration to the best interests of the children. As Mr Kotas submitted, the judge was particularly generous in that regard and considered the appellant's case at its very highest, giving weight to the expert report from the independent social worker and the appellant's wife's supportive statement despite the fact that that evidence was prepared in different circumstances two years previously. By the time of the appeal hearing the appellant had separated from his wife and had no contact with his children nor had he commenced any legal proceedings to gain access and contact, but the judge proceeded on the basis that contact and access would be resumed and that the relationship between the appellant and his children were as previously stated.

25. The judge went on to give detailed and cogent reasons, based on a consideration of all relevant matters including those set out in the Strasbourg jurisprudence, for concluding that there were no very compelling reasons outweighing the public interest in deportation. That was a conclusion he was fully entitled to reach on the evidence before him, considering in particular the serious nature of the appellant's offending and his conduct in returning to the UK in breach of a deportation order and absconding for a number of years, and despite the positive aspects of his case which were fully considered by the judge. There was nothing inconsistent in such a conclusion, and in the judge's assessment of the appellant's circumstances and approach to relevant matters, with the decision in Ali or Makhlouf. Whilst the judge said at [47] that the immigration rules comprised a complete code in Article 8 deportation cases, contrary to the clarification since given by the Supreme Court in Ali, I find that nothing material arises from that, given the matters relevant to the appellant's case, and I find no error of law in the judge's approach to Article 8. All relevant factors had been thoroughly and carefully considered by the judge and accorded the relevant weight in the balancing exercise and there was nothing further for him to consider outside the rules.

26. The judge's decision is a detailed and thorough one, addressing all relevant matters and including a full and proper assessment of the appellant's Article 8 claim, as consistent with relevant jurisprudence. The judge reached a proper conclusion on the evidence before him and in light of the circumstances of the appellant's case. For all of the reasons given above, I conclude that the grounds of appeal do not disclose any errors of law in the First-tier Tribunal's decision.

DECISION

27. The appellant's appeal is accordingly dismissed. The making of the decision of the First-tier Tribunal did not involve an error on a point of law, such that the decision has to be set aside. I do not set aside the decision. The decision to dismiss the appellant's appeal therefore stands.

Anonymity

The First-tier Tribunal made an order for anonymity. I maintain that order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

Signed Date
Upper Tribunal Judge Kebede