Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00877/2014

THE IMMIGRATION ACTS

Heard at Royal Courts of Justice
Decision & Reasons Promulgated
On 12th September 2016
On 27th September 2016

Before

UPPER TRIBUNAL JUDGE FRANCES

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

ALI REZA AKHLAGHI
(anonymity direction not made)
Respondent

Representation:
For the Appellant: Mr D Clarke, Home Office Presenting Officer
For the Respondent: In person

DECISION AND REASONS
1. Although this is an appeal by the Secretary of State for the Home Department, I shall refer to the parties as in the First-tier Tribunal. The Appellant is a citizen of Iran born on 21st March 1968. His appeal, against the Respondent's decision to make a deportation order under Section 32 of the UK Borders Act 2007, was allowed by First-tier Tribunal Judge Herbert OBE in a decision promulgated on 12th July 2016.
2. The Secretary of State for the Home Department applied for permission to appeal on the basis that the judge had made a material error of law in failing to set out very compelling circumstances over and above those described in paragraphs 399 and 399A of the Immigration Rules. Further, the judge's finding that the Appellant's wife and child would face very compelling circumstances was largely due to the family being split up by the Appellant's deportation. The judge had failed to properly apply Lee v Secretary of State for the Home Department [2011] EWCA Civ 348 and PF (Nigeria) v Secretary of State for the Home Department [2015] EWCA Civ 251 at paragraph 43 which states, in particular:
"I fully recognise that if the judge's factual findings are well-founded there will be a real and damaging impact on his partner and the children; but that is a common consequence of the deportation of a person who has children in this country. Deportation will normally be appropriate in cases such as the present even though the children will be affected and the interests of the children are a primary consideration."
3. The Secretary of State further relied on LC (China) [2014] EWCA Civ 1310 at paragraph 24 which states, inter alia:
"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 including the effect of deportation on any children.... By contrast however, where the person to be deported has been sentenced to a term of four years' imprisonment or more, the provisions of paragraph 399 do not apply and accordingly the weight to be attached to the public interest in deportation remains very great despite the factors to which that paragraph refers. It follows that neither the fact that the Appellant's children enjoy British nationality nor the fact that they may be separated from their father for a long time will be sufficient to constitute exceptional circumstances of a kind which outweigh the public interest in his deportation. The Appellant's children will not be forced to leave the UK since if she chooses to do so their mother is free to remain with them in this country."
4. The grounds argue that the judge further erred in law in considering Article 8 outside the Immigration Rules which was contrary to MF (Nigeria) [2013] EWCA Civ 1192. The judge failed to take into account Section 117B and 117C of the Nationality, Immigration and Asylum Act 2002. The threshold applied by the judge was too low and the judge failed to attach significant weight to the public interest given that the Appellant received a nine year sentence. The judge failed to follow the guidance in McLarty (Deportation - proportionality balance) [2014] UKUT 315 (IAC) which states:
"There can be little doubt that, in enacting the UK Borders Act 2007, Parliament views the object of deporting those with a criminal record as a very strong policy, which is constant in all cases (SS (Nigeria) v SSHD [2013] EWCA Civ 550). The weight to be attached to that object will, however, include a variable component, which reflects the criminality in issue. Nevertheless, Parliament has tilted the scales strongly in favour of deportation and for them to return to the level and then swing in favour of a criminal opposing deportation there must be compelling reasons, which must be exceptional."
5. The second ground of challenge is that the judge made findings in respect of 'very compelling circumstances' which were not supported by the evidence, namely that some or all of the children would face significant emotional harm that would have a detrimental effect on their education and welfare. It was submitted that there was no independent evidence and therefore it was not open to the judge to make such a finding which was speculative and based on no more than a belief that this was in fact the case.
6. At subparagraph 36(2) of the decision, the judge stated that there is every indication that the Appellant's wife would break under the strain and it may well trigger depression or some other form of mental illness that would directly cause detriment to her ability to care for her children. Again there was no independent evidence to support such a finding that the Appellant's wife suffered, or would suffer, with depression or mental illness. The judge was speculating in that respect.
7. In conclusion, the judge was speculating with regard to his findings at paragraph 36(1), (2) and (3). His finding at paragraph 37, that the Appellant would face 'very compelling circumstances' because of the repressive regime in Iran, was irrational. It was based on the judge's own belief as to the circumstances the Appellant would face on return and not supported by actual risk claimed by the Appellant.
8. Permission to appeal was granted by First-tier Tribunal Judge Astle on 1st August 2016 on the basis that it was arguable that the judge failed to give proper weight to the public interest and failed to apply the Rules correctly. Further the judge failed to have regard to Section 117B and indulged in undue speculation with regard to the effect on the children. He further erred in referring to Article 8 outside the Immigration Rules. The judge failed to take note that the Appellant did not claim a risk on return.

Submissions
9. Mr Clarke submitted that the judge had failed to identify 'very compelling circumstances' over and above those mentioned in the Immigration Rules. The matters referred to at paragraph 36 of the judge's decision were subsumed by the Rules. The judge failed to identify circumstances outside the Rules. Further, those conclusions were based on speculation. There was no expert evidence to support the findings made at paragraph 36. The judge was not an expert on mental health and there was no evidence independent of that of the Appellant's wife. The judge was speculating outside his own expertise and there was no independent evidence to show emotional detriment to the children or indeed mental health issues in relation to the Appellant's wife.
10. The judge's conclusion at paragraph 36(3), that there would be no dramatic effect on society at large, was against the clear weight that should be attached to the public interest in accordance with case law. The facts as found in this case were always present in deportation cases. The re-introduction of the Appellant to his family was not something that was over and above what is set out in the Immigration Rules and did not amount to very compelling reasons, it was just a question of fact. The Appellant's deportation would have devastating effects on the family which was a normal consequence of deportation. In this case there were no care requirements or caring difficulties. The judge appeared to be suggesting that the threshold is at a level of suffering rather than a threshold over and above what is unduly harsh.
11. Mr Clarke submitted that the judge wrongly took into account the situation in Iran, as very compelling circumstances at paragraph 50, and speculated that the Appellant would be at risk of persecution on return and may be arrested and questioned. It was wholly inappropriate for the judge to make such findings without hearing submissions by the Appellant and without making reference to background material to enable him to come to those conclusions. It was not a compelling circumstance that the Appellant had been in the UK since the age of 10 and was in effect a home-grown criminal. The public interest required deportation and his length of residence in the UK was a factor to be taken into account, but it could not outweigh the fact that he had received a nine year sentence of imprisonment.
12. Mr Akhlaghi represented himself and submitted that since he had returned home in June 2015 he had been working. He had lived in the UK since 1978 when he came at the age of 10. He committed his first offence when he was 30 years old. He would be 38 next January. He had never been back to Iran, never been on a holiday and had no knowledge of Iranian culture. All his family were British, his mother, father and sister. He did not get a passport because he was lazy and then was unable to get one after his first criminal conviction. He regrets his nine year sentence and the fact that he lied to his wife. He was not able to work on a Fridays because he had to sign at the Home Office and this was causing difficulties with his job. He was not seeking to remain in the UK because he had married a British citizen, but because he had never been to Iran. He did not read or write Farsi, although he could speak it with his mother. His wife and children could not speak Farsi.
13. In response, Mr Clarke submitted that, although the Appellant had been here lawfully for half of his life, this was only one of the criterion to be assessed. It carried more weight than long residence in itself, but the fact of the matter was that the judge had come to a conclusion for which there was no evidential basis and some of the factors relied on by the judge formed part of the Immigration Rules. Even if the judge had identified factors over and above what was contained in the Immigration Rules there was no evidential basis on which he could come to the conclusions which he did. For example, he could not conclude that the Appellant was persecuted when it was not argued before him and there was no evidence before the judge to support such a finding.

Discussion and Conclusions
14. The judge set out his findings of fact at paragraph 28 onwards. He found that the Appellant has been rehabilitated and that, although he did not have the benefit of a NOMS Report or OASys Report, he had assessed the Appellant's risk of reoffending as low because he was satisfied, on the evidence before him, that the Appellant had his gambling addiction under control. The judge also found that the evidence of the Appellant's wife was compelling and she was a witness of truth. The fact that she had stated that she would leave him with all the children was a factor which meant he was unlikely to reoffend in the future. The judge therefore concluded that the Appellant had successfully rehabilitated himself on an objective basis.
15. The judge acknowledged the extremely serious nature of the offences of which the Appellant had been convicted and that Parliament had placed an extremely high bar that the Appellant had to satisfy to resist deportation. The judge found that the Appellant had left Iran with his father who was a general in the Iranian army at the time following the revolution and that the Appellant had no experience whatsoever of life in Iran. Although the judge noted that there may be a risk of persecution should the Appellant be removed to Iran, he stated that he placed this to one side save that he acknowledged that the Appellant may have difficulty returning safely to Iran and re-establishing himself there given his family history and background. The judge found that it would be difficult to provide for his family who are British citizens and his wife who is of Turkish ethnic origin, which may well affect their ability to visit him in the foreseeable future.
16. Accordingly, I am not persuaded by the Respondent's submission that the judge took into account irrelevant factors and made findings which he was not able to make. The judge clearly observed that there would be difficulties to the Appellant re-establishing himself on return, but he did not conclude that the Appellant would face a real risk of persecution if removed to Iran. I find that the judge's conclusions at paragraph 30 were open to him on the evidence and the factors referred to were factors which he should take into account in assessing whether there were 'very compelling circumstances' over and above those referred to in the Immigration Rules.
17. The judge also found that the evidence of the Appellant's wife was extremely strong and her description of the effect on the children was compelling. The judge did not have an expert report and had to make an assessment of the likely impact on the children's emotional wellbeing on the basis of the evidence which was before him. He gave reasons for why he attached significant weight to the evidence of the Appellant's wife and found that there would be severe emotional problems for the four children concerned. The judge concluded that the Appellant's deportation would have a devastating impact on the children and, although it was not an overriding factor, it was of significant importance.
18. The judge found that the Appellant's deportation would have a devastating effect on the children and his wife such that it was unlikely that the family would stay together if he was deported. The Appellant came to the UK when he was 11 years old, he had no knowledge of Iran and could not read or write Farsi. The judge found that it was rather unfortunate that he had not obtained British citizenship like his mother, father and siblings. The Appellant had been granted indefinite leave to remain in August 1992. The judge found that the Appellant would face significant hardship and difficulty on return to Iran and that the Appellant's spouse would face real hostility given her Turkish ethnic origin.
19. It is clear from paragraph 34 that the judge was well aware of the weight to be attached to the public interest. I find that the judge's reasons given at paragraphs 36(1), (2) and (3) were sufficient to support his findings that there were very compelling reasons over and above the normal ones that apply in paragraphs 399 and 399A. Those findings were open to the judge on the evidence. He was entitled to place weight on the evidence of the Appellant's wife and the effect that she considered his deportation would have on the emotional wellbeing of her own children. The judge was aware that he did not have expert evidence and that there was no evidence from social services or other independent authorities. His conclusion that, for the reasons given at paragraph 36, there were 'very compelling circumstances' which would override the strong public interest was a conclusion that was reasonably open to the judge on the evidence before him.
20. In assessing 'very compelling circumstances', the judge concluded at paragraph 38:
"The strength of this family has been maintained by the Appellant's spouse and to a large extent by each child. The fact that the Appellant has been re-introduced to them for a year is a significant factor. It may be argued that it would have been better if he had not seen his family at all and had simply been removed directly to Iran. If that had occurred it may have been that that would be far harsher for him, but the family may have just simply continued coping in the way that they have done. I find that the re-introduction of the Appellant to their lives as from June last year has given them hope and expectation that family life has and ought to continue. This is an unfortunate consequence which is not the fault of the Respondent, but it is just a description of what has happened. I find therefore that his removal for a second time would have a devastating effect on all four children and would effectively break the Appellant's spouse's ability to cope as she herself has admitted.
The fact that they have managed to do so during his incarceration does not mean that they could survive that a second time. I am left in no doubt that there is a very strong emotional bond of love and affection between the Appellant and his family that is clear to me. In the circumstances therefore I find that the impact on the children's education and the spouse's mental health is almost certainly in a combination to amount to 'very compelling' reasons over and above those in Exceptions 1 and 2. It may well be that families where an offender is known and supported in his offending would not suffer too much from that person's deportation. In my assessment of this particular family I find that this is not the case.
There is also the factor probably not envisaged by the Immigration Rules that deporting a foreign criminal back to Iran is probably one of the most risky destinations anybody could possibly choose. This was particularly so in the Appellant's case given that he was a child of 11 years old and had connections to the previous regime with the Shah of Iran through his father. This also amounted to very compelling reasons over and above paragraph 399 and 399A."
21. I find that the judge has identified 'very compelling circumstances.' The judge's further consideration under Article 8 outside the Rules did not amount to a material error of law. The judge properly allowed the appeal under the Immigration Rules. It follows that the appeal would be allowed on Article 8 grounds also.
22. The judge acknowledged that this was a finely balanced case and he has made strenuous efforts to ensure that the error made initially by the First-tier Tribunal was not repeated. He has quite clearly acknowledged the weight to be attached to the public interest and applied the correct test, namely 'very compelling circumstances' over and above the exceptions in 1 and 2.
23. I find that there was no error of law and the judge properly applied Section 117 of the Immigration, Nationality and Asylum Act 2002, attaching significant weight to the public interest. The judge concluded that the effect of Appellant's deportation on his wife and children would be more than unduly harsh. It was likely that the Appellant would be unable to re-establish himself in Iran and his wife and children would be unable to visit.
24. The judge's conclusion that there were 'very compelling circumstances' over and above those identified in the Immigration Rules was a conclusion which was open to the judge on the evidence before him. Accordingly, I find that there is no error of law in his decision and I dismiss the Respondent's appeal.

Notice of Decision
The appeal is dismissed.
No anonymity direction is made.

J Frances
Signed Date: 23rd September 2016

Upper Tribunal Judge Frances