Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: da/01068/2014

THE IMMIGRATION ACTS

Heard at North Shields
Decision & Reasons Promulgated
On 18 October 2016
On 27 October 2016

Before

UPPER TRIBUNAL JUDGE RINTOUL

Between

SARKO [J]
(NO ANONYMITY ORDER MADE)
Appellant
and

secretary of state for the home department
Respondent

Representation:
For the Appellant: Ms Soltani, Solicitor, Iris Law Firm
For the Respondent: Mr Harrison, Presenting Officer

DECISION ON ERROR OF LAW AND REASONS
1. The appellant appeals with permission against the decision of First-tier Tribunal Judge Fisher, promulgated on 4 September 2014, dismissing his appeal against the decision of the respondent made on 23 May 2015 to refuse to revoke a deportation order made against him.
2. The appellant is a citizen of Gambia, born on 2 July 1979. He first arrived in the United Kingdom in 2002. He met his first wife, and they were married on 24 January 2004. He then returned to Gambia, applied for a spouse visa which was granted, and returned to the United Kingdom. The couple then had a child, AY, but he later separated from his wife.
3. The appellant met his second wife, L, in the United Kingdom, and they were married in Gambia on 27 March 2007, his marriage to his first wife having been dissolved earlier that year. A further spouse visa was granted and he returned to United Kingdom, eventually being granted indefinite leave to remain on 2 July 2009. One month later, relationship with his second wife broke down the appellant left the family home.
4. On 20 July 2010 the appellant was sentenced to 12 months' imprisonment for possessing a class a controlled drug (cocaine) with intent to supply. The respondent then made a decision to deport him. The appeal against that decision was dismissed and his appeal rights became exhausted by 1 August 2012.
5. Further submissions were made to the respondent which were treated as an application to revoke the deportation order subsequently the applicant went to live with his new partner, [WD]; on 13 June 2013 they had a child, AM.
6. In addition to these relationships, the appellant also had a relationship between his first and second marriages as a result of which a child, JD, was born on 9 August 2006. [WD] also has a child, L, from a previous relationship. L has effectively no contact with her biological father.
7. The respondent's case is set out in the refusal letter dated 23 May 2014. She accepted that the appellant had a genuine and subsisting relationship with both AY and AM but did not accept that all the requirements of paragraph 399 (a) of the Immigration Rules were met. She also accepted that the appellant had a genuine parental relationship with L. The respondent accepted that the appellant has a relationship with [WD] but did not accept that the requirements of paragraph 399 (b) of the immigration rules were met. Respondent not accept either that there were exceptional circumstances in this case such that the deportation order should be revoked.
8. The appeal came before the first-tier Tribunal on 19 August 2014. The judge heard evidence from the appellant, [WD], and her daughter L. It also heard submissions from the representatives. Of particular note was a submission from Miss Bishop, on behalf of the Secretary of State, that since the Immigration Rules were changed in 28 July 2014 the new version of the rules should be applied to the appeal [5]. That position had been opposed by Miss Soltani who appeared for the appellant on that occasion also.
9. The judge found that: -
(i) the appeal was to be decided on the Immigration Rules in force prior to 28 July 2014 [25] but that Part 5A of the 2002 Act should apply;
(ii) it would be unreasonable to expect AY to relocate to Gambia but there was another family member, her mother, who was able to care for her in the UK and accordingly paragraph 399 (a) (ii) (b) was not met [32];
(iii) it would not be reasonable to expect L to leave the United Kingdom and that her mother could care for her [34];
(iv) it would not be reasonable to expect AM to leave the United Kingdom and that her mother could care for her [35];
(v) as the requirements immigration rules were not met, he had to consider whether there are any exceptional circumstances which would outweigh the public interest in deportation [36], finding that the appellant's relationships with his children, giving due weight to their best interests, involves anything which could be termed as exceptional [37]; and, as many potential deportees would be in relationships and have children, and if that was sufficient to amount to exceptionality, the word would be effectively rendered otiose;
(vi) while the sentence passed on the appellant was at the lower end of the scale, the seriousness lies in the fact that he was prepared to sell a Class A drug for his own financial benefit this therefore being a very serious offence [39];
(vii) Exception 2 within section 117C of the 2002 was not met [40], the effect on the three children not being unduly or unjustifiably harsh, the public interest outweighing those of the parties in the appeal [41];
10. The appellant sought permission to appeal on the grounds that the judge had erred in law: -
(i) in misdirecting himself, having found the requirements of the immigration rules were not met, in requiring exceptionality it is not required by section 117;
(ii) in considering exceptionality before considering section 117 C of the 2002 Act;
(iii) in failing to give reasons for the conclusion that the deportation of the appellant would not be unduly harsh in its effect on the children
11. On 25 November 2014, Upper Tribunal Judge Goldstein granted permission stating:
"I am persuaded that this application demonstrates that the First-tier Judge may have made an error of law in failing to give adequate reasons for his findings on material matters and is arguably his as to whether the judge was entitled in law to reach the conclusions that he did for the reasons given"
Did the decision of the first tribunal involve the making of an error of law?
12. For the reasons set out below, I am satisfied that it did. It is unfortunate that this appeal was heard in the short gap between the coming into force of section 117C and new immigration rules on 28 July 2014 and the decision in YM (Uganda) [2014] EWCA Civ 1292. As both representatives agreed, the judge had a for understandable reasons proceeded to determine the appeal on an impermissible basis, that is, on the basis of the Immigration Rules in place prior to 28 July 2014. The question then remains, is the decision sustainable, this error notwithstanding?
13. There are significant differences between the two versions of the rules, in particular those relating to the exceptions which may apply in the case of an appellant's children. These provisions mirror exception 2 within section 117C
14. The correct approach, as the Court of Appeal has made clear, was to have considered the position under the Immigration Rules, in particular paragraph 399 (a) which would have required an assessment of whether the effect on the children of the appellant's deportation would have been unduly harsh. He should then have gone on to consider whether, if those exceptions were not met, there were "very compelling circumstances over and above those described in paragraphs 399".
15. As is clear from MM (Uganda) v SSHD [2016] EWCA Civ 450, the assessment of whether something is unduly harsh required regard to be had to all the circumstances including the criminal's immigration and criminal history. Assistance as to how to assess very compelling circumstances as set out in paragraph 398, and section 117C (6), is given in NA (Pakistan) v SSHD [2016] EWCA Civ 662:
"33. Although there is no 'exceptionality' requirement, it inexorably follows from the statutory scheme that the cases in which circumstances are sufficiently compelling to outweigh the high public interest in deportation will be rare. The commonplace incidents of family life, such as ageing parents in poor health or the natural love between parents and children, will not be sufficient.
34. The best interests of children certainly carry great weight, as identified by Lord Kerr in HH v Deputy Prosecutor of the Italian Republic [2012] UKSC 25; [2013] 1 AC 338 at [145]. Nevertheless, it is a consequence of criminal conduct that offenders may be separated from their children for many years, contrary to the best interests of those children. The desirability of children being with both parents is a commonplace of family life. That is not usually a sufficiently compelling circumstance to outweigh the high public interest in deporting foreign criminals. As Rafferty LJ observed in Secretary of State for the Home Department v CT (Vietnam) [2016] EWCA Civ 488 at [38]:
"Neither the British nationality of the respondent's children nor their likely separation from their father for a long time are exceptional circumstances which outweigh the public interest in his deportation."
35. The Court of Appeal said in MF (Nigeria) that paras. 398 to 399A of the 2012 rules constituted a complete code. The same is true of the sections 117A-117D of the 2002 Act, read in conjunction with paras. 398 to 399A of the 2014 rules. The scheme of the Act and the rules together provide the following structure for deciding whether a foreign criminal can resist deportation on Article 8 grounds.
36. In relation to a medium offender, first see whether he falls within Exception 1 or Exception 2. If he does, then the Article 8 claim succeeds. If he does not, then the next stage is to consider whether there are "sufficiently compelling circumstances, over and above those described in Exceptions 1 and 2". If there are, then the Article 8 claim succeeds. If there are not, then the Article 8 claim fails. As was the case under the 2012 rules (as explained in MF (Nigeria)), there is no room for a general Article 8 evaluation outside the 2014 rules, read with sections 117A-117D of the 2002 Act."
16. While the judge did at [41] consider whether the effect on the children would be unduly harsh, it is unclear on what basis he reached that finding. It appears from the structure of his determination, that he considered this only in the context of whether, given that the exceptions set out in the Immigration Rules were not met, there was anything exceptional to outweigh the public interest. That is material given that the judge directed himself in accordance with MF (Nigeria) [2014] EWCA Civ 1192 In which the court of appeal held:
"40. Does it follow that the new rules have effected no change other than to spell out the circumstances in which a foreign criminal's claim that deportation would breach his article 8 rights will succeed? At this point, it is necessary to focus on the statement that it will only be "in exceptional circumstances that the public interest in deportation will be outweighed by other factors". Ms Giovannetti submits that the reference to exceptional circumstances serves the purpose of emphasising that, in the balancing exercise, great weight should be given to the public interest in deporting foreign criminals who do not satisfy paragraphs 398 and 399 or 399A. It is only exceptionally that such foreign criminals will succeed in showing that their rights under article 8.1 trump the public interest in their deportation.
41. We accept this submission?:
17. The implication of this is that the public interest in deporting those who do not fall within the exceptions is higher. There is no indication that the judge did not follow MF (Nigeria) and it follows that he assessed the public interest as higher when proceeding to consider the next state of his assessment. It follows that his assessment that the effect on the children would not be unduly harsh took too high an assessment of the public interest. Further, it is not entirely clear how he reached the conclusion at [41].
18. Accordingly, I consider that the decision of the First-tier Tribunal is not sustainable and I set it aside. Given the lapse of time since the previous hearing and the changes in circumstances in respect of the children, I consider that the matter must be remitted to the First-tier Tribunal for a fresh hearing on all issues.

SUMMARY OF CONCLUSIONS
1. The decision of the First-tier Tribunal involved the making of an error of law, and I set it aside.
2. I remit the appeal to the First-tier Tribunal for a fresh hearing on all issues. The hearing must not be before First-tier Tribunal Judge Fisher

Signed Date: 19 October 2016

Upper Tribunal Judge Rintoul