Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00506/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 5 December 2016
On 24 February 2017

Before

UPPER TRIBUNAL JUDGE PITT

Between

The secretary of state for the Home Department
Appellant
and

bci
(ANONYMITY DIRECTION MADE)
Respondent

Representation:

For the Appellant: Ms Fijiwala, Senior Home Office Presenting Officer
For the Respondent: In person

DECISION AND REASONS

1. Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I continue the anonymity order made by the First-tier Tribunal. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original appellant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings. I do so in order to prevent serious harm arising from the disclosure of the appellant's condition and that of her daughter.
2. This is an appeal by the Secretary of State against the decision of First-tier Tribunal Judge Saunders issued on 15 August 2016 which allowed the appeal of BCI against deportation on Article 8 ECHR grounds.
3. For the purposes of this decision I refer to the Secretary of State as the respondent and to BCI as the appellant, reflecting their positions before the First-tier Tribunal.
Background
4. The brief background to this matter is that the appellant came to the UK on 4 July 1994 as a student with leave until 21 January 1995. Her daughter, BCF was born here on 20 August 1994. BCF is now British. The appellant made an asylum claim on 20 January 1995. On 30 August 1996 the appellant was convicted of wounding with intent to do grievous bodily harm and received a 4-year sentence. Her asylum application was refused in a letter dated 18 July 1998 which was served on her in detention on or after 12 August 1998. She appealed that decision. On 27 January 1999 the appellant also made a marriage application.
5. The appellant continued to report as required by the respondent. From 2008 onwards she chased the respondent for a decision. On 15 December 2011 the respondent issued a Notice of Liability to Deportation. On 25 February 2014 she was served with a further refusal of her asylum claim and on 27 February 2014 with a Decision to Make a Deportation Order. She appealed those decisions. Her appeal was allowed by First-tier Tribunal Judge Bird issued on 6 February 2016. That decision was set aside as it failed to the apply the correct legal matrix as at the date of the hearing.
Decision of First-tier Tribunal
6. The appeal was then re-decided by First-tier Tribunal Judge Saunders in a decision dated 15 August 2016. That is the decision now under challenge. As the appellant had received a 4-year sentence it was common ground before Judge Saunders that she had to show "very compelling circumstances" over and above the exceptions to deportation set out in paragraphs 399 and 399A of the Immigration Rules.
7. It was argued before the First-tier Tribunal for the appellant that her circumstances were very compelling. It was not disputed by the respondent that the appellant has been given a diagnosis of a learning disability. This, in turn, lay behind the undisputed evidence of sexual and physical abuse and exploitation by others during the appellant's earlier years in Jamaica and after coming to the UK. It was submitted that the appellant had a particularly close and important relationship with her adult British daughter, BCF, who was also diagnosed with a mental disorder, the symptoms of which included self-harm and attempted suicide whilst a minor. It was maintained that the mental stability of both the appellant and her daughter was dependent on their remaining together as well as on the network of family and friends the appellant had established over 26 years in the UK. The delay from 1998 to 2014 in progressing enforcement action was also considered to be excessive and a significant factor in the proportionality of deportation now.
8. Judge Saunders found that the "very compelling circumstances "test was met here and that deportation amounted to a disproportionate interference with the appellant's Article 8 ECHR family and private life. Her conclusion is at [42] of the decision, as follows:
"42. Weighing up all of the above, I conclude that this Appellant has shown that very compelling circumstances exist over and above those contained in the Exceptions set out in section 117C(6), and including paragraphs 390A and 398(c). This is because notwithstanding the public interest presumptions and considerations in favour of deportation contained in the relevant legislation, Rules and case law which I have applied with care, there are several very weighty factors which collectively I find outweigh the public interest and to amount to very compelling circumstances over and above those Exceptions contemplated. These include, in summary, the unprecedented and inexcusable delay; the entrenching of the Appellant's private and family ties during her 26 years in the UK, mostly as a direct consequence of this delay; her significant vulnerability which both increases the strength and importance of those ties and increases the risk of harm in Jamaica in the light of her past history of physical and sexual abuse. In considering all these circumstances, I have, as I have indicated, taken account of her intervening conduct and the several low level offences committed prior to 2008, and also the 2014 caution. I nevertheless conclude, weighing up all of the above, that her appeal against deportation succeeds for the reasons I have given."
Decision on Error of Law
9. The first substantive argument in the respondent's written grounds is at paragraph 3 which maintain that Judge Saunders" misapplied the arduous threshold required to establish very compelling circumstances and to displace the public interest in A's deportation" and failed "in substance, to consider Article 8 through the prism of those provisions."
10. It is wholly unarguable that the First-tier Tribunal Judge here did not apply the correct legal tests, give proper weight to the public interest or took an incorrect approach in the "very compelling circumstances" test.
11. Under a heading "The Law and applicable approach", the judge referred at [15] to the provisions of section 117A-C of the Nationality, Immigration and Asylum Act 2002, setting out s.117C in full. At [16] she referred to Part 5 of the Immigration Rules which apply to deportation cases and sets out the relevant parts of those provisions in full.
12. The judge then refers herself to the correct approach to the "very compelling circumstances" test at [17] with reference to the case of Chege (section 117D Article 8 approach) [2015] UKUT 00165.
13. The First-tier Tribunal judge applied that correct legal framework to her findings at [31] to [41], further indicating that she was taking a proper approach by using the heading "Part 5A of the 2002 Act and the Immigration Rules" for that part of the decision. Her analysis in those paragraphs includes numerous specific references to the correct legal framework to be followed in deportation cases and sets out a clear understanding of the very high public interest in the removal of foreign national criminals.
14. In [31] the judge again refers to Chege and works through the stages set out in that case. At [32] she correctly identifies the requirement for a "core Razgar test within the framework and through the lens of the Rules and statute identified above". At the end of the same paragraph she sets out that the "question in this appeal is whether the interference is a proportionate one, undertaken by assessment through the structure and lens of the Rules and part 5A, as per Chege, supra".
15. At [33] the judge states as follows:
"I start by reminding myself of the recent Upper Tribunal guidance concerning the very great 'potency' of the public interest in deportation appeals ? ."
She goes on to refer to reported Upper Tribunal cases setting down that high test, in particular Greenwood (No. 2) (para 398 considered) [2015] UKUT 00629 (IAC) which sets out that "the starting point for any such assessment is the recognition that the public interest in deporting foreign criminals is so great that only in exceptional circumstances will it be outweighed by other factors". She goes on to refer to the same position set out in SS Nigeria v SSHD [2014] 1WLR 908 that only a "very strong claim indeed" can succeed, that case being approved recently by the Supreme Court in Hesham Ali v SSHD [2016] UKSC 60.
16. At [34] the judge again specifically identifies the public interest:
"With the above starting point in mind and framing my consideration hereafter, I turn to the specific public interest consideration set out in Section 117B. The maintenance of effective immigration control is in the public interest Section 117B(1)."
17. At [36] she refers to the additional public interest consideration arising from s.117C and applies it:
"36. I now turn to the additional public interest factors applicable in deportation appeals, as per section 117C and set out in full hearing above. As I have set out, parliament has declared that the deportation of foreign criminal is in the public interest and the more serious the offence, the greater this public interest in deportation is (section 117C(1), (2); paragraphs 396, 398(a). The threshold under Statute and the Rules is set very high in cases involving offending that has attracted a sentence of four years and over, as here, requiring very compelling circumstances over and above those contained in the stated exceptions (section 117C(6); paragraph 398(c). As to the specific offence in this appeal and my view of it, I repeat my findings above. It was clearly a serious offence of violence. Such offences rightly attract particular social reprobation. The public interest requires me, additionally, to weigh her criminality per se together with the need to express society's revulsion and also provide a deterrent to foreign nationals here; Greenwood (No 2 supra) N Kenya v SSHD [2004] EWCA 1094. I do this".
18. I have already set out [42] which also contains specific reference to the public interest "in favour of deportation" and to applying it "with care".
19. It is simply unarguable in the light of these paragraphs that the First-tier Tribunal judge did not apply the correct law or failed to appreciate and apply the weight that attracted to the public interest and the high threshold for a finding of "very compelling circumstances", that assessment to be carried out as stated at [32], "through the lens of the Rules and statute identified above". The appellant did not have to show factors of a different nature to those set out in paragraphs 399 and 399A. That point has been settled by the Court of Appeal in NA Pakistan [2016] EWCA Civ 662 and Secretary of State for the Home Department v JZ (Zambia) [2016 EWCA Civ 116. Paragraph 3 of the grounds does not have merit.
20. In paragraphs 4 to 10 of the grounds, under the heading "A. Family Life", the respondent challenges the First-tier Tribunal's findings on the appellant's relationship with her adult daughter and her son and his family.
21. Paragraph 4 of the grounds appears to ignore that in [22], when assessing the appellant's family life, the judge put at the forefront of her consideration the fact of none of the appellant's family attending the hearing, their evidence not being subject to cross-examination and this being something to be taken into account when weighing their evidence. Paragraph 5 of the grounds is somewhat misleading in suggesting that the conclusion on the circumstances of the appellant's daughter were "wholly unsubstantiated by medical opinion" when paragraphs 6 and 8 of the grounds confirm that there was medical evidence on her mental health. As indicated at [22] of the decision, that medical evidence raised quite serious matters, including attempted suicide, and it was open to the First-tier Tribunal to find that the medical history was consistent appellant's evidence on the daughter's current situation. The judge was not obliged to find past offences of "dishonesty", specifically shoplifting, meant that weight could not be placed on her evidence, as suggested at paragraph 5 of the grounds.
22. Having considered the written and oral evidence on the appellant's relationship with her daughter in detail at [22], it was open to the judge to find "dependency going beyond the normal emotional ties between parents and adult children" and the grounds at paragraphs 6 to 8 really only seek to disagree with this finding.
23. When finding at [23] that the appellant had a "close bond" with her son and his children, the judge took specific account of the "recent short gap in her involvement", was entitled to find good reason for this and to accept that the appellant was to see her grandchildren "imminently". She did not find that family life had been shown with the son and his family, contrary to the suggestion at paragraph 10 of the grounds. The judge did not suggest that the appellant was a primary carer for her grandchildren or that they would not be cared for adequately were she to be deported. Again, the judge took into account the material evidence on the relationship the applicant has with her son and his family, assessed it and reached rational findings that were open to her. No error of law arises in that regard.
24. Paragraphs 11 to 14 of the grounds challenge the findings on the difficulties the applicant would face on return to Jamaica, under the heading "B. Mental Health". Paragraphs 11 and 12 are misconceived in suggesting that the appellant can expect support from family in Jamaica where the judge gave sustainable reasons at [24] for finding that she could not. The judge approached this part of the evidence carefully, noting that the appellant's evidence was "less clear". She did not accept that evidence wholesale, rejecting an argument that the children in Jamaica resented the appellant for leaving them. The judge took into account that there was contact with relatives in Jamaica. She was entitled to find that the evidence showed their circumstances to be "stark", however, and that there was "practical and economic incapacity" which precluded "any" support for the applicant. The respondent's grounds again really only seek to disagree with the judge's reasons.
25. Paragraph 13 of the grounds questions the appellant's current diagnosis, ignoring the unremitting nature of a learning disability. The grounds also fail to engage with the legitimate reliance of the First-tier Tribunal on the country evidence on women in Jamaica and the past abuse there suffered by the appellant as a result of her learning disability; see [39]. Against the undisputed background of domestic violence and sexual abuse from others and vulnerability because of her learning disability, it was open to the judge to find that the appellant would be vulnerable again to violence and sexual abuse on return to Jamaica.
26. The grounds at paragraphs 14 to 19 return to the question of the judge's approach to the public interest, already addressed above. The first issue raised is the approach taken to the delay from 1998 to 2014 in pursuing enforcement action, the judge finding this to be an important factor weighing in favour of the appellant in the proportionality assessment.
27. In the case of RJG v Secretary of State for the Home Department [2016] EWCA Civ 1042 at 54 the Court of Appeal said as follows:
"In any event, I am satisfied that the appellant's proposed case on delay cannot succeed. I would accept that, in principle, a substantial delay on the part of the Secretary of State in pursuing the deportation of a person convicted of serious crime could be an important factor in determining the proportionality of the deportation, both because it might reflect on the weight to be given to the public interest in deportation and because of its effect on the individuals concerned. In the latter regard, I have firmly in mind the observations of Lord Bingham of Cornhill, made in another context, in EB (Kosovo) v Secretary of State for the Home Department [2009] 1AC 1159 at [14]-[16]. However, viewing the particular circumstances of this case in the manner most favourable to the appellant, the delay which occurred, when considered in conjunction with the other factors on which he relies, cannot in my view outweigh the compelling public interest in his deportation."
28. This passage sets out that delay has the potential to affect "the weight to be given to the public interest in deportation" and can be an "important" factor. It provides authority for the approach taken by Judge Saunders, here, the extent of the delay, at least 16 years, being significant.
29. At paragraph 17 of the grounds the respondent takes issue with the judge's application of the s. 117B factors, in particular that the applicant is financially independent. At 34 of the determination the judge found that the applicant:
"appears to have been predominantly self-supporting in that she has not claimed State funds, but has been assisted by the kindness of various friends; see Section 117B(3).
30. I accept that the case of Rhuppiah v Secretary of State for the Home Department [2016] EWCA Civ 803 at paragraphs 63-65 indicates that someone in the appellant's circumstances cannot be considered to be financially independent where she was not "financially independent of others". This is not a factor on which the First-tier Tribunal placed much weight, however, and it is not my judgement that it can be said that the decision would have had a different outcome but for this point.
31. The final challenge in the grounds is to the weight that was placed on the appellant's private life. It is not disputed that the appellant has been in the UK for 26 years. This was clearly a significant factor. The case of Treebhawon and Others (NIAA 2002 Part 5A - compelling circumstances test) [2017] UKUT 00013 (IAC) confirms that notwithstanding the provisions of s.117B (4) and (5), a family or private life established whilst someone is here illegally or precariously can in some circumstances be accorded more than "little weight". The judge sets out at [35] legitimate reasons why weight attracted to the appellant's private life in the context of the delay.
32. The grounds at paragraphs 20 to 22 maintain that the FTTJ erred in concluding that the applicant had lawful leave from 1998 to the present because of the provisions of section 3C of the Immigration Act 1971. Ms Fijiwala did not take this point any further before me and it would appear that the chronology set out in the written grounds as to when the appellant lodged her asylum appeal in 1998 is not correct. The First-tier Tribunal sets out the correct chronology at [28]. This shows that the appellant's asylum appeal is acknowledged in a letter dated 30 October 2012 at page 186 of the appellant's bundle to have been lodged on 20 August 1998. A memorandum of the respondent dated 12 August 1998 at annexe K of the respondent's bundle (RB) shows that the appellant was not served with the refusal of her asylum claim until 12 August 1998 at the earliest. The memorandum has a Form 104B attached to it and this indicated that the appellant had 7 working days to appeal. That would be 21 August 1998 at the earliest so the appeal of 20 August 1998 would have been in time. In fact, the Form 104B also states that the deemed date of service was "the second day after which it was sent" which would be 14 August and the 7 working day deadline then being 25 August 1998. Annexe L of RB shows a covering letter dated 20 August 1998 lodging an appeal on that date which is presumably what the respondent was referring to in her letter dated 30 October 2012. In any event, as above, whether or not the appellant had lawful leave from 1998 onwards, the particular circumstances of this case allowed the First-tier Tribunal to place weight on her private life.
33. For all of these reasons, I did not find that the grounds showed that the decision of First-tier Tribunal Saunders erred in law.

Notice of Decision

The decision of the First-tier Tribunal does not disclose an error on a point of law and shall stand.

Signed Date: 13 February 2017
Upper Tribunal Judge Pitt