Tribunal decisions

The decision

IAC-AH-DN-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00665/2011

THE IMMIGRATION ACTS

Heard at Birmingham Employment Centre
Decision & Reasons Promulgated
On 9th December 2016
On 9th January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

o n m
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J M Wilson (Solicitor)
For the Respondent: Mr K Norton (HOPO)

DETERMINATION AND REASONS
1. The Appellant is a male, a citizen of Jamaica, who was born on 18th January 1973. The appeal has a long and tortuous history beset by procedural difficulties. By a decision dated 17th August 2015, the Upper Tribunal remitted this appeal to the First-tier Tribunal. The Upper Tribunal's decision is reported as ONM (Remitted to UKFTT with directions) [2015] UKUT 517 (IAC). The determination is publicly available. There is no need to repeat its contents here. It was heard at Birmingham Sheldon Court by a panel comprising Designated Judge McCarthy and Judge Parkes on 8th June 2016, with the determination promulgated on 18th August 2016, whereupon the Appellant's appeal was allowed on the basis of Article 3 ECHR. The Respondent appealed whereupon on 14th September 2016, Designated Judge Woodcraft granted permission to appeal.
2. Judge Woodcraft observed how the panel had allowed the appeal under Article 8 because they found that the Appellant's activities as a police informer would put him at risk from non-state actors upon return to Jamaica. They had found that the reach of the "Shower Posse" extended throughout Jamaica (paragraph 28 of the determination). Judge Woodcraft also observed how it was that this appeal had been in the Tribunal for almost five years and that the Tribunal had now sought to narrow down the issues quite understandably and to give a concise determination. However, it was arguable that they do not adequately explain the evidential basis for their findings. For example, it was not clear whether the shower posse really did have the reach alleged when the Respondent claims that her evidence shows the gang had broken up, such that the shower posse would be able to seek out the Appellant in Jamaica and subject him to ill-treatment. This, observed Judge Woodcraft, was arguably unfortunate given that the previous panel's decision (to dismiss the appeal) was remitted because they had erred in the opposite direction by wrongly concluding that the witness protection plan would be available to the Appellant upon return. There was an additional issue, namely whether the Appellant was given a reduced sentence in this country because of his informant activities. The Respondent previously accepted that he was an informant. The issue therefore goes to whether anyone in Jamaica would know that they would be in a position to act on it to the Appellant's detriment. Permission to appeal was granted.
3. At the hearing before me on 9th December 2016, both representatives referred to the procedural irregularities. The list of appeals dated 6th December 2016 did include the Appellant's appeal as being one that was to be heard on 9th December by this Tribunal. However, there was then subsequently an application by Appellant's Counsel to adjourn this matter which was refused by the Tribunal. Notwithstanding that, in the morning list of 9th December 2016, it transpired that the matter had been taken out of the list and was no longer effective. Nevertheless, all these relevant parties were present at the hearing. Mr J M Wilson, the Appellant's solicitor, who has had conduct of this case for very many years had diligently attended court. The Appellant was in attendance also with his partner. So, also, was Mr Norton who had travelled up from London to represent the Respondent Home Office. He, as the documentation shows, had been involved in this case for a number of years, having seen it through its various stages before various Tribunals.
4. Both representatives indicated that given that all the parties were here, and given that this matter had been ongoing for such a long time, it would be altogether wise and prudent to reinstate the matter in the list and to have it heard today. I undertook to personally inform the listings section at Field House in London (and did so after this appeal hearing in the presence of the court clerk and both of us spoke to listings to explain the position and have this matter reinstated to this court's list), the effect of which was that we were able to proceed and dispose of this matter.
5. Mr Norton, handed up a detailed bundle of documents which included the "Respondent's consolidated bundle" dated 23rd March 2016, with the Respondent's skeleton argument, the original appeal file bundle, the first determination of IJ Colyer on 15th February 2012, and the Upper Tribunal decision of UTJ Hanson of 27th February 2012, together with much case law, that was relevant to this appeal. He submitted that the Tribunal of Designated Judge McCarthy was wrong to allow this appeal under Article 3 because there is a wealth of case law that confirms that the Appellant could not succeed on this basis, and the reasons for this were set out in the very well combined skeleton argument of the Respondent. On the other hand, it remained the case that the Appellant had his partner in this country and two children, who had long been settled here, with the eldest child now being 18 years of age, such that it was arguable that there would be very significant obstacles to these children relocating to Jamaica. The Appellant still could not succeed under the Immigration Rules, but the position could well be properly considered outside the Immigration Rules. In short, Mr Norton submitted that provided that the Article 3 aspect of the appeal was not pursued, and was conceded by Mr Wilson appearing on behalf of the Appellant, as being a non-starter, this Tribunal could properly consider whether the Appellant could now succeed under Article 8 ECHR outside the Rules.
6. For his part, Mr Wilson submitted that he was prepared to concede that Article 3 could not succeed for the reasons set out in the case law referred to in the Respondent's skeleton argument. On the other hand, as far as Article 8 was concerned there were two children of the Appellant and of Miss Richards and DUTJ Hanson had granted Miss Richards' appeal precisely on the basis that the "best interests" of the eldest child (now aged 18) require that he remain in the UK (the younger child of the two not at the time having been here for seven years, but now having been here for ten years). The youngest child was himself now in a position to apply for British citizenship on the basis of the ten year Rule. The eldest child, who was 18, had always lived with Miss Richards, and the family live together. There is also an independent social worker's report which had originally been submitted and this had also stated that it was in the best interests of the child to be here. On this basis, there was no need for this Tribunal to consider the application of Article 3.
Error of Law
7. I am satisfied that the making of the decision by the panel in the determination promulgated on 18th August 2016 amounted to an error of law (see Section 12(1) of TCEA 2007). The deportation of foreign criminals is in the public interest and this has been long established: see SS (Nigeria) [2013] EWCA Civ 550. The Respondent in her decision of 2nd September 2011 certified the Appellant's asylum claim under Section 72 NIAA. The original Tribunal determination of Judge Colyer of 15th February 2012 makes it clear (at paragraph 32(1)) that, "There is no suggestion having examined Pagasus records that the source of the relationship was ever compromised". It has only been the Appellant's word that the relationship has been compromised.
8. The Appellant himself has been a convicted criminal who has sought to embellish and exaggerate his role in the role that he has played with the police authorities in this country. But more importantly, the Appellant was registered CHIS in the UK between 2006 and 2007 and he was never an informer in Jamaica. He has never given evidence in a court of law regarding criminal activities in the UK or Jamaica.
9. Therefore, his historical identity as CHIS in the UK has never been compromised. He is not even suspected except on the basis of what the Appellant himself states. There is no evidence that the Appellant is at any perceivable risk in Jamaica and this was confirmed in the original determination of IJ Colyer (at paragraphs 56 to 73). For this reason, it is an error to allow this appeal under Article 3 ECHR.
10. I note that Mr Wilson does not seek to challenge this view as it was explained to all parties concerned in open court. The Tribunal decision of 18th August 2016 cannot therefore stand.
Remaking the Decision
11. I remake the decision on the basis of the findings of the original judge, the evidence before the judge, and the submissions that I have heard today. I am allowing this appeal for the following reasons. The previous determination recorded that the Appellant's partner and her two minor children had no status in the UK and that they will return to Jamaica to live with the Appellant. However, since then the partner won her appeal for leave to remain on the basis of her son's length of residence in the UK and his best interests.
12. The position now is that the Appellant's partner and her two children have been granted discretionary leave to remain in the UK. The eldest child is now over 18 and the youngest child has reached the age of 10 years such that he is entitled to apply for a British citizenship. The children live with their mother and the independent social worker's report has made it clear that the best interests of the children are to remain in this country. Both parties before me accepted that the appeal stood to be allowed under Article 8 ECHR outside the Rules. It cannot succeed under the Immigration Rules. Even if one has regard to the public interest considerations in Section 117, it is clear that the length of time that the children have been here is a more significant factor.
13. In MA (Pakistan) [2006] EWCA Civ 705, the court considered the application of the "reasonableness test", in circumstances where the children were otherwise "qualifying" and observed (at paragraph 46) that the Immigration Directorate Instructions themselves make it clear that "once the seven years' residence requirement is satisfied there need to be 'strong reasons' for refusing leave (paragraph 11.2.4)". This is because after such a period of time the child will have put down roots and develop social, cultural and educational links in the UK such that "it is likely to be highly disruptive if the child is required to leave the UK". The court went on to say that "In these cases there must be a very strong expectation that the child's best interests will be to remain in the UK with his parents as part of the family unit" (paragraph 46).
14. The Appellant is in a family relationship with the children and the impact of his removal on the family unit is something that must be carefully assessed and evaluated. It is significant that Miss Richards obtained her leave to remain expressly on the basis of the position of the children. In MA (Pakistan) the Court of Appeal gave consideration to the "wider approach" and drew attention to whether Parliament intended to require considerations bearing "upon the conduct and immigration history of the applicant", and stated that the assessment, as far as the children are concerned is what is "reasonable for the child" (see paragraph 40). This was part of the "wider approach" that Parliament had itself mandated in relation to such cases.
15. This is, of course, a case which involves Article 8 in relation to foreign criminals and the express provision here is Section 117C, but even here the public interest in favour of deportation can be obviated where the Appellant, as here, has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of the deportation on the partner or child would be unduly harsh. I found this to be the case here and I heard no representations to the contrary.
Notice of Decision
The decision of the First-tier Tribunal involved the making of an error of law such that it falls to be set aside. I set aside the decision of the original Tribunal. I remake the decision as follows. This appeal is allowed on Article 8 ECHR grounds.
An anonymity direction is made.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date

Deputy Upper Tribunal Judge Juss 6th January 2017