Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: da 01224 2012

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 3 June 2013
On 24 June 2013

Before

UPPER TRIBUNAL JUDGE PERKINS

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

RICHARD JOHN ARCHIBALD
Respondent

Representation:
For the Appellant: Mr S Walker, Senior Home Office Presenting Officer
For the Respondent: Mr R Dunlop, Counsel, instructed by Cleveland & Co Solicitors
DETERMINATION AND REASONS
1. I see no need to for an anonymity order in this case.
2. The respondent to this appeal, hereinafter “the claimant”, is a citizen of South Africa. He was born on 8 December 1978 and so is now 34 years old. He appealed successfully to the First-tier Tribunal a decision of the present appellant, hereinafter “the Secretary of State”, to make him the subject of a deportation order.
3. The Secretary of State was given permission to appeal to the Upper Tribunal by First-tier Tribunal Judge Coates on 17 April 2013.
4. The proper approach to be taken by the Tribunal in cases such as this is not uncontroversial and I intend to explain rather carefully both the First-tier Tribunal’s decision and the grounds raised in the notice of appeal against that decision.
5. The First-tier Tribunal’s determination shows that the claimant appealed a decision of the Secretary of State, made on 26 November 2012, that section 32(5) of the UK Borders Act 2007 applied to this case and that therefore the claimant should be deported. By this provision the Secretary of State is obliged to make a deportation order against a foreign criminal unless certain exceptions apply.
6. The claimant has been in the United Kingdom since 7 April 1999. He has had permission to be in the United Kingdom throughout his stay. On 19 December 2001 he was given leave to remain on the basis of his relationship with his partner who is a British national. In December 2003 he was given indefinite leave to remain.
7. On 25 April 2012 he was convicted of two counts of thefts from a person and two counts of fraud by abuse of position and was sentenced to sixteen months’ imprisonment concurrently on each count.

8. The sentencing judge (whose name does not appear in the papers) explained that the claimant was a financial controller and accountant in a small company that depended on his performance. Over a period of about six months he dishonestly used a business credit card for personal spending in the order of about £32,500 and he took steps to conceal his dishonesty from his employers. He pleaded guilty, albeit, apparently, not at the first opportunity. He paid back £10,000, being all that he could raise in the time available to him, and he was sentenced as indicated. The judge recognised that the appellant’s criminality may have been “exacerbated by undiagnosed mental health issues”.

9. The nub of the First-tier Tribunal’s reasons for allowing the appeal was given at paragraph 25 which says:

“The appellant has lived in the UK since 1989. He has had an ancestral visa and obtained indefinite leave to remain in the UK as the partner of a British national in December 2003. The Home Office accepted the appellant’s relationship with the sponsor from 2001 onwards and they are still together. We were impressed with the obvious proximity of the relationship between the appellant and sponsor which was demonstrated before us. We found the appellant and sponsor both to be witnesses of truth who gave highly impressive, credible and consistent evidence before us. We accept that the relationship between the appellant and sponsor, being a committed relationship of approximately fourteen years in length, is highly indicative of the fact that the parties have a strong family life together. We accept the appellant’s removal would interfere with that family life. Further, the appellant has a close relationship with the appellant’s family members in the UK, including his brothers and mother and also with his 8 year old godson. The appellant also has large network of friends and has worked in the UK. He is currently undertaking charitable/voluntary activities encouraging youths not to become involved in crime. The appellant has lived in the UK for a significant period of time, being up to fourteen years, and we find that the appellant has established a strong private life in the UK to adapt time [sic]. The appellant’s removal will be in breach of his rights to a family and private life. We need to consider whether his removal is disproportionate in respect of the requirement to maintain law and order.”

10. The Tribunal then found there were “strong circumstances” making the removal disproportionate.
11. The Tribunal noted that the appellant had been released on licence and had undertaken a drugs awareness course in prison and had been assessed as “posing a very low risk of reoffending”. The Tribunal found that the appellant posed no risk of reoffending.
12. The Tribunal also accepted that the claimant committed the offences when he was “undiagnosed bipolar” and that people who were bipolar sometimes went on “spending sprees during their manic period which is what the [claimant] did”. The Tribunal noted that he had been “diagnosed and on appropriate medication”.
13. The claimant was also deeply remorseful and had been a model prisoner.
14. The Tribunal noted that the claimant’s partner’s mother was an 86 year old lady who was grand mal epileptic and relied on him. Nevertheless the claimant and his partner had considered removal to South Africa, where unemployment was running at 25%, and had concluded that the difficulties facing the claimant’s partner in obtaining work in South Africa and fracturing the relationship with the claimant’s partner’s mother as well as with a godson and other family members made it unreasonable to expect relocation in South Africa. The Tribunal also found the claimant to be “highly supportive” of his 8 year old godson.
15. The Tribunal took account of the claimant’s remorse and realistic intentions of keeping out of trouble, the disruption to the private and family life of the claimant’s partner in the event of removal and the difficulties of establishing himself in South Africa and concluded in all the circumstances that removal was disproportionate.
16. The Tribunal then allowed the appeal under the Rules and on human rights grounds.
17. There were six substantive points taken in the Secretary of State’s grounds.
18. Ground 1 is complex and I set it out in full below.
“The Immigration Judge has failed to given proper and adequate consideration to the Secretary of State’s policies and has failed to give adequate reasons for finding that the presumption to deport the [claimant] does not outweigh the [claimant’s] Article 8 private and family life rights. The [claimant] was sentenced to sixteen months’ imprisonment. Paragraph 398(b) applies to this [claimant], and the [claimant] has not satisfied paragraph 399(a) or (b) of 339A, therefore it would only be in exceptional circumstances that the public interest in deportation would be outweighed by other factors. The [claimant] has been convicted of a serious offence, and although he has now been diagnosed with bipolar disorder, there is no independent evidence suggesting that his previous offences were a direct result of this disorder. The Immigration Judge has failed to identify any exceptional circumstances, the [claimant] is not in employment, and his partner’s income is determined by the clientele he raises and he is willing to relocate to South Africa if he has to. While there may be an unusual circumstance it is not something that would lead to an unjustifiably harsh outcome and it is submitted that it is therefore not exceptional such as to be disproportionate. Exceptional in the context of Article 8 and the Immigration Rules means circumstances in which the refusal of a claim would result in an unjustifiably harsh outcome for the appellant. It is not simply something that does not conform to the Rules or something that is unusual. The [claimant’s] godchild has his natural parents to care for him and there is no evidence that this is a contributory factor that should outweigh the [claimant’s] deportation.”
19. The first part of this ground is uncontroversial. The claimant is not, and did not claim to be, in a parental relationship with a minor child in the United Kingdom and the claimant has not lived in the United Kingdom for fifteen years.
20. However the ground makes it plain that “therefore it would only be in exceptional circumstances that the public interest in deportation would be outweighed by other factors”. This assumes that the Rules encapsulate all the circumstances in which an appeal can be allowed properly with reference to Article 8. Plainly that was not the view of the First-tier Tribunal because the First-tier Tribunal expressly allowed the appeal with reference both to the Rules and to human rights grounds.
21. Ground 2 is quite specific and complains that the Tribunal adopted the approach to Article 8 assessment that was approved in MF (Nigeria) [2012] UKUT 00393 (IAC). The grounds contend that this is the wrong approach and that the requirements of European Convention on Human Rights are reflected properly in the Rules.
22. Ground 3 contends that the Tribunal should not have decided the case outside the Rules.
23. Ground 4 contends the Tribunal decided the case wrongly outside the Rules by failing to apply show that removal was not disproportionate unless the interference consequent on removal was “more than a mere hardship or a mere difficulty or mere obstacle”. According to the grounds this contention was supported by VW (Uganda) v SSHD [2009] EWCA Civ 5.
24. Ground 5 is, I find, a “catch all” ground complaining that the decision was not sufficiently clear.
25. Ground 6 asserts that there was not sufficient reason for finding why the claimant’s deportation is “not conducive to the public good”. It also asserts that there was no “evidence before the sentencing judge that the appellant’s conviction was linked to bipolar or indeed any evidence since linking his offence with his recent diagnosis, the respondent did not err by not taking this evidence into consideration”.
26. I am aware of the decision in the Court of Appeal in SS (Nigeria) v SSHD [2013] EWCA Civ 550 which was published as recently as 22 May 2013. I drew it to the parties’ attention but neither sought to rely on it.
27. Mr Walker complained of “an abject failure” to identify any exceptional circumstances. The appeal should not have been allowed under the Rules. He accepted the grounds asserted that the decision in MF (Nigeria) was wrong.
28. I regard the decision in MF (Nigeria) is good law. I have every intention of following the published decision of this Tribunal unless and until a higher court or an Act of Parliament tells me that I am wrong. It follows therefore that I reject completely any contention that the decision of the First-tier Tribunal was wrong because it considered the case outside the Rules. I do not make this decision out of blind obedience to authority. For my part I think it extremely unlikely that Rules could ever be drafted to determine properly the balance between the competing interests of the public good in removal, the rights of the person to be removed and the rights of other persons affected by that person’s removal. Each case is very fact specific and I consider it unlikely that the Rules are capable of being drawn in such a way as to incorporate every possible permissible finding about a person’s human rights. Further I do not consider that rules can ever displace an individually assessed human rights balancing exercise. If they could then the whole provisions of the Human Rights Act and the Convention could be circumvent by tight definitions and strict Rules that no-one could ever satisfy.
29. I am satisfied the Tribunal was right to make a decision outside the Rules.
30. Mr Dunlop contended that the Tribunal was right to make a decision under the Rules. He built this case on the interesting argument concerning the meaning of “exceptional circumstances” under paragraph 398. He said the Secretary of State does not seem to have a consistent understanding of the meaning of “exceptional circumstances”. In the case of Izuazu (Article 8 – new Rules) [2013] UKUT 00045 (IAC) at paragraph 28 the Upper Tribunal recorded that the Secretary of State had submitted that the Rules as amended served to restore the “exceptional circumstances test disapproved by the House of Lords in Huang v SSHD [2007] UKHL 11”. This contrasted rather with the submissions of Miss Lisa Giovannetti QC in R (on the application of Nagrev) v SSHD [2013] EWHC 720 (Admin) at paragraph 32 that:
“It is not contended that the effect of the new Rules is to restore an exceptional circumstances test equivalent to that rejected by the House of Lords in Huang (by reference to the old Immigration Rules) and by the Upper Tribunal in Izuazu (by reference to the new Rules), by contrast with the position argued unsuccessfully by the Secretary of State in Izuazu: see [28], [47] – [50] and [58]. Rather, the Secretary of State accepts that the consideration of possible Article 8 claims arising outside the new Rules involves a broader consideration of cases by reference to the general factors and approach set out in the new guidance on her residual discretion set out above.”
31. I have reflected very carefully on this. I find that the meaning of “exceptional circumstances” is not defined in the Rules and has not been determined authoritatively by any Tribunal.
32. Nevertheless as far as I can see the First-tier Tribunal did not consider exceptionality at all and I do not understand how it managed to allow the appeal under the Rules. It follows therefore that to that limited extent there is clearly an error but it is not necessarily one which I have to correct. I see no point whatsoever in interfering with the decision of the First-tier Tribunal if the decision to allow the appeal on human rights grounds outside the rules was open to it.
33. I am satisfied that the decision to allow the appeal on human rights grounds clearly was open to the Tribunal. Since Huang it has been a matter for the judges to determine what is proportional and, whilst I realise the law may change, it has not changed yet. It follows therefore that the First-tier Tribunal was entitled to find that a person settled in the United Kingdom with strong community ties who has committed one group of offences for which he has shown remorse should not be removed because his deportation would be disproportionate to the public interest in removal. As is so often the case in appeals against deportation decisions that are allowed on human rights grounds it is the rights of persons affected by the claimant’s removal rather than the claimant’s own rights that guide the decision.
34. I am not persuaded that the First-tier Tribunal erred materially when it allowed the claimant’s appeal.
35. It follows therefore that I dismiss the Secretary of State’s appeal and uphold the decision of the First-tier Tribunal.

Signed

Jonathan Perkins
Judge of the Upper Tribunal

Dated 19 June 2013