Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/01184/2012

THE IMMIGRATION ACTS

Heard at Taylor House
Determination Promulgated
On 31 May 2013
On 18 June 2013

Before

UPPER TRIBUNAL JUDGE ESHUN

Between

mr Issac Anduru Mabwa

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr A Hawkin, Counsel
For the Respondent: Mr T Melvin, HOPO

DETERMINATION AND REASONS

1. The appellant is a citizen of Kenya born on 13 June 1988. His appeal against the Secretary of State’s decision to deport him under Section 32(5) of the UK Borders Act 2007 was allowed under Article 8 of the ECHR by First-tier Tribunal Judge Easterman and Dr T Okitikpi. Although the appellant is effectively the respondent in this appeal, I shall keep the designations as they are for ease of reference.

2. The respondent was granted permission to appeal the panel’s decision by First-tier Tribunal Judge Garratt. Firstly, he said that the Secretary of State’s application was received two days out of time without reasons given for the lateness. However, having regard to the merits of part of the application and the short period of lateness, he was satisfied that there were special circumstances which would render it unjust not to extend time and did so.

3. In the respondent’s notice/skeleton argument submitted by Mr Hawkin, he raised the issue as to the effectiveness of the grant of permission to appeal, and therefore as to the jurisdiction of the Upper Tribunal to hear this appeal at all. He argued that as there was no explanation and no application to extend time, it was not appropriate or open to the judge to have regard to the merits of the application, and quite impossible to be satisfied that there were “special circumstances which would render it unjust not to extend time”. Such an approach ran entirely counter to the Upper Tribunal’s consistent recognition of the importance of time limits. Mr Hawkin relied on Boktor and Wanis (late application for permission) Egypt [2011] UKUT 00442 (IAC) and Samir (FtT permission to appeal: time) [2013] UKUT 0003 (IAC).

4. It was not in dispute that the determination of the panel was promulgated on 21 March 2013. Mr Melvin submitted that the determination reached the Presenting Officer’s team on 22 March. He showed me a copy of the application which was sent by fax to the IAC on 28 March. According to the notice of receipt sent to all the parties by the IAC, the application was received in Loughborough on 2 April 2013.

5. Paragraph 24 of The Asylum and Immigration Tribunal (Procedure) Rules 2005 stipulates that an application for permission to appeal to the Upper Tribunal must be sent or delivered to the Tribunal so that it is received no later than 5 days after the date on which the party making the application is deemed to have been served with written reasons for the decision. As the Home Office Presenting Officer’s Unit received the determination on 22 March, the fifth day for lodging the application would have been 2 April because of the intervening Easter holidays. On the evidence before me I find that the application made by the Secretary of State on 28 March was in time.

6. The other grounds of appeal submitted by the respondent argued that the panel failed to give adequate reasons for their findings under Article 8 and that the panel misdirected itself in law by following the approach recommended by the Upper Tribunal in MF (Article 8 – new Rules) Nigeria [2012] UKUT 00393 (IAC). The panel should not have simply regarded the Rules as a starting point before moving on to a second freestanding Article 8 assessment. The panel failed to consider any independent reports on the appellant that might indicate the likelihood of reoffending before reaching the conclusion that the appellant was not at future risk of offending.

7. First-tier Judge Garratt made the comment that the determination of the panel made no reference to the application of the new Immigration Rules although he inferred that this was because the panel applied part of guidance set in MF and proceeded to consider the Article 8 claim under existing case law without reference to the new Rules. However it was arguable that the panel’s approach was flawed in that it failed, in its consideration of Article 8 outside the Rules, to be informed by the greater specificity which those Rules give to the important the Secretary of State attaches to the public interest. This approach is summarised in sub-paragraph (viii) of the head note to MF. Further it is arguable that the panel did not give adequate consideration to Article 8 issues taking into consideration the future risk of offending by the appellant after showing that they had considered all the evidence relevant to their conclusion. It is arguable that the panel should have shown that it had followed the five stage approach recommended in Razgar [2004] UKHL 27 before reaching its Article 8 conclusions.

8. Mr Melvin argued that the new Immigration Rules on Article 8 should have been the starting point for the panel as found in MF and Azuazu [2013] UKUT 45 (IAC). The determination does not make mention of the new Rules at all. His core argument was that the panel failed to address the new Immigration Rules and to consider whether there were exceptional compassionate circumstances in this case or whether there were insurmountable obstacles should the appellant be deported to Kenya. This means that the panel ignored the two stage approach, that is, considering the appellant’s appeal under Article 8 of the new Rules and if the appellant failed under the new Rules then there would be no need to look at the second stage which would be considering Article 8 under the Razgar principles.

9. After hearing Mr Hawkin’s submissions, I agreed with him that Mr Melvin’s arguments ran counter to the way the case was argued before the First-tier Tribunal. I also found that his argument ran counter to ground one of the grounds submitted with the application for permission to appeal, which said that the panel had applied a two stage test in the Article 8 assessment and in doing so had misdirected itself in law. Yet, Mr Melvin was arguing that the Tribunal failed to apply the two stage test and in so doing misdirected itself in law. There was confusion in the respondent’s line of argument. The respondent’s argument did not amount to an error of law.

10. At paragraph 9 of the determination it is recorded that “neither of the parties suggested that the appellant could meet the requirements of private or family life under the changes in the Immigration Rules that apply to the appellant and as a result the claim rests entirely on Article 8.” In light of this agreement it is not arguable that the panel failed in their duty to consider the new Immigration Rules. Having agreed that the appellant could not succeed under those new Rules, there was no need for the panel to consider the new Immigration Rules simply for the purpose of carrying out their duty.

11. I also agree with Mr Hawkin that it was difficult to see how the panel could have reached a materially different conclusion merely by considering whether the factors they relied on amounted to exceptional circumstances under the Immigration Rules. The panel would still have gone on to consider the appeal under Article 8 outside the Rules in any event if they considered that the appellant would not succeed under the new Immigration Rules.

12. I find that the respondent’s remaining grounds of appeal do not disclose a material error of law in the panel’s decision.

13. The panel considered the nature of the appellant’s offending. He was employed as a financial assistant being paid £25,000 a year. He became addicted to what is described as spread betting and what the panel described as speculative trading on the internet. Over a period of three months he took money by falsifying details on invoices, so that money that should have been paid to suppliers, was actually paid to his own bank account with the consequence that he lost the company some £92,000. The panel considered the sentencing judge’s remark that the offences were completely out of character and that the appellant was highly educated, came from a good family and knew that he had let himself and his family down. It was clear that the offending had had a great deal of effect on all the family. The judge would use the sentence from the starting point of 30 months to fifteen months which was a significant reduction.

14. I find that at paragraph 53 the panel correctly directed itself in stating that it is only because of this offending that the appellant is considered a foreign criminal and in need of removal. They took account of the general proposition that where a person is sentenced to more than one year the Secretary of State is bound to deport them unless they can bring themselves within one of the exceptions. The panel started their deliberations from the point that having been sentenced to more than one year the appellant should be deported from the United Kingdom. It is clear from this paragraph and to the preceding paragraphs that the panel had the public interest in deportation firmly in mind.

15. The panel balanced the appellant’s article 8 rights against the public interest in deportation. They heard live evidence from the appellant, his father, mother, sister and brother. For the reasons set out at length in paragraphs 54 to 58 the panel found that the public interest was outweighed in the appellant’s case. The panel were convinced that the appellant was indeed very remorseful for what he had done, not just because he was going to be or may well be deported, but because he was ashamed of his actions and the stigma that his actions have brought on himself and his family. They believed that he will try to seek to repay the money that he has stolen. The panel looked at the appellant’s family’s circumstances and found that the private and family life he has been built up whilst he was in the UK, in particular the family life is such that it would not be proportionate to deport him.

16. The grounds further submitted that the appellant has been convicted of a pre-panned, sophisticated crime with no evidence that he has tackled the gambling addiction that led to the offence. Mr. Hawkin in his skeleton argument said that it was clear from the evidence of that appellant that he had sought assistance from the probation service, though they had not yet responded. Most importantly, the appellant in his oral evidence had said that had whilst in prison trained as a barber, which is work that keeps him away from excessive time on the computer, which was what led him to start the speculative trading. There was also a lot of evidence about the appellant’s plans aided by his parents to start a barber’s shop with his father having already identified a possible shop for him and his father to start the business in. It appears to me that all this evidence was accepted by the panel.

17. A further argument developed by the respondent was that the panel failed to consider any independent reports on the appellant that may indicate the likelihood of reoffending. However, as stated by Mr Hawkin in his skeleton argument neither the prison service nor the probation service have produced any reports on the appellant’s risk of reoffending and the Tribunal itself had considered the issue and concluded after hearing the evidence of the appellant and his family members that he was not at future risk of reoffending.

18. In the light of the above, I find that the panel made no error of law in its decision.

19. The panel’s decision allowing the appellant’s appeal shall stand.

Signed Date

Upper Tribunal Judge Eshun