DA/01095/2012
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The decision
DA 01095 2012
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Heard at Field House
Determination Promulgated
On 20 June 2013
On 26 June 2013
Before
UPPER TRIBUNAL JUDGE WARR
Between
SECRETARY OF STATE
Appellant
and
AP
(Anonymity Direction Made)
Respondent
Representation:
For the Appellant: Mr P Deller, Home Office Presenting Officer
For the Respondent: Mr A Burrett, of counsel, instructed by J D Spicer Zeb, solicitors
DETERMINATION AND REASONS
1. This is the Secretary of State's appeal but for convenience I will refer to the original appellant as the appellant herein. The appellant is a citizen of Thailand born on 18 December, 1964. He arrived in this country on 15 September, 1978, age 13, on a settlement visa to join his mother and sister. His mother had left Thailand for the UK to work in the Embassy when the appellant was four years old. The appellant has not been back to Thailand since 1997. His father in Thailand died two years ago.
2. The appellant's background was briefly summarised by the Secretary of State in the refusal letter of 13 November, 2012. It is recorded that in 1990 the appellant was admitted to hospital under section 37 of the Mental Health Act 1983 after the appellant admitted hearing voices. On 15 May 1998 the appellant killed a friend of his after having a few drinks and some cannabis. On 18 September, 1998 he pleaded not guilty to murder but guilty to manslaughter on the grounds of diminished responsibility. On 11 November, 1998 at the Central Criminal Court the appellant was sentenced and placed on a restriction order under the Mental Health Act. He was admitted to the Three Bridges Medium Secure Unit. He was conditionally discharged on 5 May, 2008. However he was recalled to hospital on 14 December, 2010 due to a relapse in his mental health. He was released again on conditional discharge on 4 March, 2011 and resided in 24-hour supported accommodation.
3. The Secretary of State decided to deport the appellant on 21 June, 2012. It was noted that the appellant had admitted stabbing a friend to death with a knife in an unprovoked attack on 15 May 1988. The appellant had got a knife from his home and had attacked his victim stabbing him three times in total. Some people had attempted to disarm the appellant. He had dropped the knife but had then picked it up again and walked off along the road. In the refusal letter the Secretary of State considered the appellant's case under the immigration rules. Reference was made to paragraph 398 of the immigration rules:
“Where a person claims that their deportation would be contrary to the UK's obligations under Article 8 of the Human Rights Convention, and
(a) the deportation of the person from the UK is conducive to the public good because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years;
(b) the deportation of the person from the UK is conducive to the public good because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months; or
(c) the deportation of the person from the UK is conducive to the public good because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law, the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors.”
4. The Secretary of State considered that paragraph 398(c) applied in the appellant’s case because his offending had caused serious harm and showed a particular disregard for the laws of the United Kingdom. The terms of paragraph 399 were found not to apply to the appellant and the Secretary of State turned to consider the position under paragraph 399A:
“This paragraph applies where paragraph 398(b) or (c) applies if –
(a) the person has lived continuously in the UK for at least 20 years immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK; or
(b) the person is aged under 25 years, he has spent at least half of his life living continuously in the UK immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK.”
5. The Secretary of State accepted that the appellant had lived continuously in the UK for at least 20 years immediately preceding the date of the immigration decision (discounting any period of imprisonment). However the Secretary of State was not satisfied that the appellant had no ties to Thailand. He had spent his youth and formative years in Thailand and would be able to speak the language. He had returned to Thailand on holiday on two occasions in 1991 and 1992 and his father lived in Thailand. He had accordingly got social, cultural and family ties in Thailand.
6. The Secretary of State also found that there were no exceptional circumstances which would outweigh the public interest in the appellant's deportation.
7. The appellant appealed and his appeal came before a panel on 16 April, 2013. The appellant was represented then as he is now by Mr Burrett.
8. The panel found the appellant was 48 years of age and had entered the United Kingdom legally on a settlement visa on 15 September, 1978 to join his mother. Clearly he had spent his formative years in the United Kingdom and had significant ties to the United Kingdom. He had a support network here consisting of his family, medical professionals and his peers. He had a job in a day centre in Chelsea. In assessing whether the appellant had ties in Thailand the panel found it had to determine whether there were any meaningful ties. It noted the appellant had been living in this country for over 30 years and had visited Thailand on three occasions, the latest in 1997. The appellant had not spoken to his father or seen him since 1995. He did not know where his father was and had never had a relationship with him. His father had another family, he could not stay there even if he did find him. There was no relationship to build upon. The people most important to him were his mother and sister. In his witness statement he had said he had no connections left in Thailand and his father had died. The evidence that his father had died was not challenged at the hearing by the presenting officer. The panel concluded:
“We are satisfied that the passage of time since the appellant entered the United Kingdom has extinguished any ties that the appellant may have had with Thailand. He has lost contact with extended family there and given his mental disorder there is no possibility of establishing contact. His father is dead and even when he was living contact between the appellant and his father ceased 18 years ago.”
9. The panel accordingly found that the requirements of paragraph 399A were met.
10. The panel went on to consider in the alternative the issue of exceptional circumstances. Taking into account the appellant’s circumstances and the medical evidence and his mother’s poor health it concluded that adjusting to life in Thailand was likely to be a significant challenge for the appellant after 36 years in the United Kingdom. He was vulnerable to stress and the social impact of a move to Thailand was likely to destabilise his illness. The factors combined amounted to exceptional circumstances. The appeal was allowed under the rules.
11. The Secretary of State applied for permission to appeal contending that the view that the Tribunal took was unbalanced and failed to have due regard to the public interest. Reference is made to paragraph 28 of the determination and the finding by the tribunal that exceptional factors outweighed the public interest. However at no part of the assessment did the Tribunal acknowledge that the appellant had killed someone and that he continued to be a risk to the public. The tribunal’s findings were irrational and no balancing exercise had been undertaken.
12. Permission to appeal was granted by a First-tier Judge on 14 May 2013. It was said to be arguable that a balancing exercise was still required notwithstanding that the appeal had been allowed under the immigration rules.
13. A response was filed drafted by Mr Burrett 0n 31 May 2013. He submitted that the panel had been right to consider the appeal under the immigration rules and he referred to paragraph A362 of HC 395:
“Where Article 8 is raised in the context of deportation under Part 13 of these rules, the claim under Article 8 will only succeed where the requirements of these rules as at 9 July, 2012 are met, regardless of when the notice of intention to deport or the deportation order, as appropriate, was served.”
14. The panel had also correctly interpreted and applied paragraph 399A. There was no evidence that the appellant posed a risk to the public in any event. The panel had also made findings in the alternative under paragraph 398 and the grounds did not establish the findings should be interfered with. The findings of the panel did not indicate that an appeal under Article 8 would not have been allowed.
15. Mr Deller acknowledged that he was in difficulty. The panel has allowed the appeal under the immigration rules and had also found exceptional circumstances. The grounds were cast as an irrationality challenge. No issue had been taken with the panel’s conclusions about the appellant’s lack of ties with Thailand.
16. The Secretary of State had effectively decided in the immigration rules the weight to be accorded to past offending: the balance was struck there. It would not be right for the Secretary of State to persuade the Tribunal, the case succeeding apparently under the rules, to adopt a second stage approach under article 8 and revisit the conclusions under the rules. The case of MF (Nigeria) [2012] UKUT 393 (IAC) was concerned with the different situation where the appeal failed under the rules.
17. Mr Deller said he was in an impossible position given that the appeal had been allowed on the basis that had not been challenged. He could not challenge the decision. I did not trouble Mr Burrett in the premises.
18. This was a case that was allowed by the panel under the immigration rules. As Mr Burrett submitted in his response the case can only be allowed under the rules on Article 8 in a deportation case where the requirements of the rules are met.
19. There was no challenge to the findings of fact made by the panel on the lack of ties to Thailand and accordingly, the issue of length of residence having been conceded, the panel was entitled to conclude that the appellant succeeded given the terms of paragraphs 398c and 399A.
20. The grounds contend that the panel’s decision was irrational. However, there was nothing irrational in following and applying the rules.
21. In the grant of permission to appeal the First-tier Judge refers to the arguable need to consider the public interest. This point is misconceived. The Secretary of State takes into account the interests of the public in the rules. The rules make it quite plain that the Secretary of State takes a more serious view of offences dependent on the length of sentence imposed (paragraph 398(a) and (b)) or where, as in this case, the appellant’s removal is conducive to the public good for other reasons.
22. The rules take a gradated approach to matters. Different consequences flow from different circumstances. It may be the Secretary of State took the view that the public interest lay in making clear rules from which departure would only be possible in exceptional circumstances. The Secretary of State’s position was stated in paragraph 81 of Ogundimu (Article 8 – new rules) Nigeria [2013] UKUT 00060 (IAC):
“The Secretary of State submits that the tribunal is required to determine the issue of whether the appellant’s deportation would lead to a breach of Article 8 ECHR by reference principally to whether he meets the requirements of the ‘new’ rules. It was asserted that, if he does meet the requirements of those rules, then his appeal ought to be allowed because those rules reflect where the public interest lies; however, if he does not meet the requirements of the new rules then his appeal ought to be dismissed.”
23. The view of the Tribunal in MF that a two stage approach is required is not accepted by the Secretary of State and the matter is to be considered by the Court of Appeal. However, whichever way that case is decided does not appear to impact on the position in the converse case where an appeal is allowed under the rules.
24. Accordingly I find the panel did not arguably err in law in allowing the appeal under the immigration rules as the appellant was found to fall within paragraph 399A and the panel’s findings of fact on the question of the appellant’s ties to Thailand have not been challenged. It is not argued, for example that the panel’s approach conflicted with the guidance in Ogundimu in paragraphs 123 to 125. It was not necessary to consider the issue of exceptional circumstances though there appears to be no flaw in the panel’s analysis of those circumstances.
25. The Secretary of State’s challenge fails. The panel’s decision was not flawed in law and I direct that it shall stand.
Appeal of Secretary of State dismissed
Anonymity Direction made by First-tier Tribunal to continue
Signed
20 June 2013
Upper Tribunal Judge Warr
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Heard at Field House
Determination Promulgated
On 20 June 2013
On 26 June 2013
Before
UPPER TRIBUNAL JUDGE WARR
Between
SECRETARY OF STATE
Appellant
and
AP
(Anonymity Direction Made)
Respondent
Representation:
For the Appellant: Mr P Deller, Home Office Presenting Officer
For the Respondent: Mr A Burrett, of counsel, instructed by J D Spicer Zeb, solicitors
DETERMINATION AND REASONS
1. This is the Secretary of State's appeal but for convenience I will refer to the original appellant as the appellant herein. The appellant is a citizen of Thailand born on 18 December, 1964. He arrived in this country on 15 September, 1978, age 13, on a settlement visa to join his mother and sister. His mother had left Thailand for the UK to work in the Embassy when the appellant was four years old. The appellant has not been back to Thailand since 1997. His father in Thailand died two years ago.
2. The appellant's background was briefly summarised by the Secretary of State in the refusal letter of 13 November, 2012. It is recorded that in 1990 the appellant was admitted to hospital under section 37 of the Mental Health Act 1983 after the appellant admitted hearing voices. On 15 May 1998 the appellant killed a friend of his after having a few drinks and some cannabis. On 18 September, 1998 he pleaded not guilty to murder but guilty to manslaughter on the grounds of diminished responsibility. On 11 November, 1998 at the Central Criminal Court the appellant was sentenced and placed on a restriction order under the Mental Health Act. He was admitted to the Three Bridges Medium Secure Unit. He was conditionally discharged on 5 May, 2008. However he was recalled to hospital on 14 December, 2010 due to a relapse in his mental health. He was released again on conditional discharge on 4 March, 2011 and resided in 24-hour supported accommodation.
3. The Secretary of State decided to deport the appellant on 21 June, 2012. It was noted that the appellant had admitted stabbing a friend to death with a knife in an unprovoked attack on 15 May 1988. The appellant had got a knife from his home and had attacked his victim stabbing him three times in total. Some people had attempted to disarm the appellant. He had dropped the knife but had then picked it up again and walked off along the road. In the refusal letter the Secretary of State considered the appellant's case under the immigration rules. Reference was made to paragraph 398 of the immigration rules:
“Where a person claims that their deportation would be contrary to the UK's obligations under Article 8 of the Human Rights Convention, and
(a) the deportation of the person from the UK is conducive to the public good because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years;
(b) the deportation of the person from the UK is conducive to the public good because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months; or
(c) the deportation of the person from the UK is conducive to the public good because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law, the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors.”
4. The Secretary of State considered that paragraph 398(c) applied in the appellant’s case because his offending had caused serious harm and showed a particular disregard for the laws of the United Kingdom. The terms of paragraph 399 were found not to apply to the appellant and the Secretary of State turned to consider the position under paragraph 399A:
“This paragraph applies where paragraph 398(b) or (c) applies if –
(a) the person has lived continuously in the UK for at least 20 years immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK; or
(b) the person is aged under 25 years, he has spent at least half of his life living continuously in the UK immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK.”
5. The Secretary of State accepted that the appellant had lived continuously in the UK for at least 20 years immediately preceding the date of the immigration decision (discounting any period of imprisonment). However the Secretary of State was not satisfied that the appellant had no ties to Thailand. He had spent his youth and formative years in Thailand and would be able to speak the language. He had returned to Thailand on holiday on two occasions in 1991 and 1992 and his father lived in Thailand. He had accordingly got social, cultural and family ties in Thailand.
6. The Secretary of State also found that there were no exceptional circumstances which would outweigh the public interest in the appellant's deportation.
7. The appellant appealed and his appeal came before a panel on 16 April, 2013. The appellant was represented then as he is now by Mr Burrett.
8. The panel found the appellant was 48 years of age and had entered the United Kingdom legally on a settlement visa on 15 September, 1978 to join his mother. Clearly he had spent his formative years in the United Kingdom and had significant ties to the United Kingdom. He had a support network here consisting of his family, medical professionals and his peers. He had a job in a day centre in Chelsea. In assessing whether the appellant had ties in Thailand the panel found it had to determine whether there were any meaningful ties. It noted the appellant had been living in this country for over 30 years and had visited Thailand on three occasions, the latest in 1997. The appellant had not spoken to his father or seen him since 1995. He did not know where his father was and had never had a relationship with him. His father had another family, he could not stay there even if he did find him. There was no relationship to build upon. The people most important to him were his mother and sister. In his witness statement he had said he had no connections left in Thailand and his father had died. The evidence that his father had died was not challenged at the hearing by the presenting officer. The panel concluded:
“We are satisfied that the passage of time since the appellant entered the United Kingdom has extinguished any ties that the appellant may have had with Thailand. He has lost contact with extended family there and given his mental disorder there is no possibility of establishing contact. His father is dead and even when he was living contact between the appellant and his father ceased 18 years ago.”
9. The panel accordingly found that the requirements of paragraph 399A were met.
10. The panel went on to consider in the alternative the issue of exceptional circumstances. Taking into account the appellant’s circumstances and the medical evidence and his mother’s poor health it concluded that adjusting to life in Thailand was likely to be a significant challenge for the appellant after 36 years in the United Kingdom. He was vulnerable to stress and the social impact of a move to Thailand was likely to destabilise his illness. The factors combined amounted to exceptional circumstances. The appeal was allowed under the rules.
11. The Secretary of State applied for permission to appeal contending that the view that the Tribunal took was unbalanced and failed to have due regard to the public interest. Reference is made to paragraph 28 of the determination and the finding by the tribunal that exceptional factors outweighed the public interest. However at no part of the assessment did the Tribunal acknowledge that the appellant had killed someone and that he continued to be a risk to the public. The tribunal’s findings were irrational and no balancing exercise had been undertaken.
12. Permission to appeal was granted by a First-tier Judge on 14 May 2013. It was said to be arguable that a balancing exercise was still required notwithstanding that the appeal had been allowed under the immigration rules.
13. A response was filed drafted by Mr Burrett 0n 31 May 2013. He submitted that the panel had been right to consider the appeal under the immigration rules and he referred to paragraph A362 of HC 395:
“Where Article 8 is raised in the context of deportation under Part 13 of these rules, the claim under Article 8 will only succeed where the requirements of these rules as at 9 July, 2012 are met, regardless of when the notice of intention to deport or the deportation order, as appropriate, was served.”
14. The panel had also correctly interpreted and applied paragraph 399A. There was no evidence that the appellant posed a risk to the public in any event. The panel had also made findings in the alternative under paragraph 398 and the grounds did not establish the findings should be interfered with. The findings of the panel did not indicate that an appeal under Article 8 would not have been allowed.
15. Mr Deller acknowledged that he was in difficulty. The panel has allowed the appeal under the immigration rules and had also found exceptional circumstances. The grounds were cast as an irrationality challenge. No issue had been taken with the panel’s conclusions about the appellant’s lack of ties with Thailand.
16. The Secretary of State had effectively decided in the immigration rules the weight to be accorded to past offending: the balance was struck there. It would not be right for the Secretary of State to persuade the Tribunal, the case succeeding apparently under the rules, to adopt a second stage approach under article 8 and revisit the conclusions under the rules. The case of MF (Nigeria) [2012] UKUT 393 (IAC) was concerned with the different situation where the appeal failed under the rules.
17. Mr Deller said he was in an impossible position given that the appeal had been allowed on the basis that had not been challenged. He could not challenge the decision. I did not trouble Mr Burrett in the premises.
18. This was a case that was allowed by the panel under the immigration rules. As Mr Burrett submitted in his response the case can only be allowed under the rules on Article 8 in a deportation case where the requirements of the rules are met.
19. There was no challenge to the findings of fact made by the panel on the lack of ties to Thailand and accordingly, the issue of length of residence having been conceded, the panel was entitled to conclude that the appellant succeeded given the terms of paragraphs 398c and 399A.
20. The grounds contend that the panel’s decision was irrational. However, there was nothing irrational in following and applying the rules.
21. In the grant of permission to appeal the First-tier Judge refers to the arguable need to consider the public interest. This point is misconceived. The Secretary of State takes into account the interests of the public in the rules. The rules make it quite plain that the Secretary of State takes a more serious view of offences dependent on the length of sentence imposed (paragraph 398(a) and (b)) or where, as in this case, the appellant’s removal is conducive to the public good for other reasons.
22. The rules take a gradated approach to matters. Different consequences flow from different circumstances. It may be the Secretary of State took the view that the public interest lay in making clear rules from which departure would only be possible in exceptional circumstances. The Secretary of State’s position was stated in paragraph 81 of Ogundimu (Article 8 – new rules) Nigeria [2013] UKUT 00060 (IAC):
“The Secretary of State submits that the tribunal is required to determine the issue of whether the appellant’s deportation would lead to a breach of Article 8 ECHR by reference principally to whether he meets the requirements of the ‘new’ rules. It was asserted that, if he does meet the requirements of those rules, then his appeal ought to be allowed because those rules reflect where the public interest lies; however, if he does not meet the requirements of the new rules then his appeal ought to be dismissed.”
23. The view of the Tribunal in MF that a two stage approach is required is not accepted by the Secretary of State and the matter is to be considered by the Court of Appeal. However, whichever way that case is decided does not appear to impact on the position in the converse case where an appeal is allowed under the rules.
24. Accordingly I find the panel did not arguably err in law in allowing the appeal under the immigration rules as the appellant was found to fall within paragraph 399A and the panel’s findings of fact on the question of the appellant’s ties to Thailand have not been challenged. It is not argued, for example that the panel’s approach conflicted with the guidance in Ogundimu in paragraphs 123 to 125. It was not necessary to consider the issue of exceptional circumstances though there appears to be no flaw in the panel’s analysis of those circumstances.
25. The Secretary of State’s challenge fails. The panel’s decision was not flawed in law and I direct that it shall stand.
Appeal of Secretary of State dismissed
Anonymity Direction made by First-tier Tribunal to continue
Signed
20 June 2013
Upper Tribunal Judge Warr