Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: da/01252/2014

THE IMMIGRATION ACTS

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

Before

UPPER TRIBUNAL JUDGE RINTOUL

Between

RICKY [V]
(NO ANONYMITY ORDER MADE)
Appellant
and

secretary of state for the home department
Claimants

Representation:
For the Appellant: Ms Liew, UK Migration Lawyers Ltd
For the Respondent: Mr Harrison, Presenting Officer

DECISION ON ERROR OF LAW AND REASONS
1. The appellant appeals with permission against the decision of the First-tier Tribunal (a panel comprising First-tier Tribunal Judges Holmes and Cope) dismissing his appeal against the decision of the respondent made on 16 June 2014 that he is a person to whom section 32 (5) of the UK Borders Act 2007 applies.
2. The appellant is a citizen of Kenya, born in 1990. He has lived in the United Kingdom since 2000 and was granted Indefinite Leave to Remain on 10 February 2009 despite a prior conviction for robbery in respect of which he was on 8 September 2008 sentenced to a 2-year detention and training order. He was also on 18 September 2009 sentenced to theft of a dwelling and sentenced to 12 months' detention at a young offenders' institute.
3. Although the appellant had a prior appeal in respect of the decision to deport him made on 6 October 2009, and that was unsuccessful, the decision was later withdrawn on 4 June 2013. The Secretary of State then considered that the appellant is liable for automatic deportation due to the conviction for theft of 18 September 2009; that is not so in the case of the earlier convictions as he was under 18 at the date of conviction.
4. The appellant is in a relationship with Miss [L], a Malaysian citizen who currently has Discretionary Leave to Remain. The couple have a child born in 2011.
5. The appellant's case is that his deportation would be in breach of article 8 of the human rights Convention given his relationship with his partner and child and that the interference to his right to respect his right private and family life would be disproportionate.
6. The appeal came before the first-tier Tribunal on 12 August 2014 and was promulgated six days later. The panel found: -
(i) the appellant and his family retained contacts with family friends in Kenya and with extended relatives there; that he has an understanding of Kenyan culture [37]; and, that he has transferable skills which he could use there to find employment [38];
(ii) that the appellant's position must be considered by reference to sections 117A to 117 D of the Nationality, Immigration and Asylum Act 2002 [39];
(iii) that they were not satisfied that there would be very significant obstacles to the appellant's integration into Kenya and thus section 117 C (4) would not apply [45];
(iv) that although the appellant has genuine and subsisting parental relationship with the qualifying child, they were not satisfied that the effects of the appellant's deportation on his child would be unduly harsh [45];
7. the appellant sought permission to appeal on the grounds that the First-tier Tribunal had erred in law: -
(i) in failing to apply relevant law (Sanade & Ors (British children - Zambrano - Dereci) India [2013] UKUT 48 (IAC); and,
(ii) in failing to provide sufficient reasons for the finding that the appellant's deportation would not be unduly harsh for the appellant's child, and failing to give weight to any factors in her favour;
(iii) in failing properly to consider the child's best interests in failing properly to apply Azimi-Moayed [2013] UKUT 197 (IAC).
8. On 30 December 2014 Upper Tribunal Judge King granted permission to appeal.
9. For reasons which are not entirely clear, the matter was not listed before the Upper Tribunal until the matter came before me on 18 October 2016.
Did the decision of the first tribunal involve the making of an error of law?
10. There is no merit in ground 1. Sanade is not relevant to deportation cases, and as the child will have a mother to look after her here, Ruiz Zambrano v ONE [2012] EUECJ C-34-09 is not engaged - see Harrison v SSHD [2012] EWCA Civ 1736 and Hines v Lambeth [2014] EWCA Civ 660.
11. 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 judges had a for understandable reasons proceeded to determine the appeal on an impermissible basis, that is, in failing to consider first the Immigration Rules as effective from 28 July 2014. The question then remains, is the decision sustainable, this error notwithstanding?
12. The correct approach, as the Court of Appeal has subsequently 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. The panel 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".
13. 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."
14. While the panel did at [45] consider whether the effect on the child would be unduly harsh, what is said at [44] is limited.
15. Mr Harrison made no submissions on this issue, save to rely on the rule 24 letter which, however, did not engage with the failure to consider the matter under the Immigration Rules first.
16. The panel, although not expressly doing so as paragraphs 399 (a) (ii) (a) require, appears to have considered at [44] that it would not be unduly harsh to require the child to live in Kenya. This must be seen in the context of what was said at [28], that Ms [L] said she intends to travel to Kenya with her child to live with the appellant if he is deported there, although she did not wish to do so, and did not know how it could be managed in practice.
17. This findings in respect of the child must also be seen in the context of SSHD v AJ (Zimbabwe) [2016] EWCA Civ 1012 at [17]:
"17. These cases show that it will be rare for the best interests of the children to outweigh the strong public interest in deporting foreign criminals. Something more than a lengthy separation from a parent is required, even though such separation is detrimental to the child's best interests. That is commonplace and not a compelling circumstance. Neither is it looking at the concept of exceptional circumstances through the lens of the Immigration Rules. It would undermine the specific exceptions in the Rules if the interests of the children in maintaining a close and immediate relationship with the deported parent were as a matter of course to trump the strong public interest in deportation. Rule 399(a) identifies the particular circumstances where it is accepted that the interests of the child will outweigh the public interest in deportation. The conditions are onerous and will only rarely arise. They include the requirement that it would not be reasonable for the child to leave the UK and that no other family member is able to look after the child in the UK. In many, if not most, cases where this exception is potentially engaged there will be the normal relationship of love and affection between parent and child and it is virtually always in the best interests of the child for that relationship to continue. If that were enough to render deportation a disproportionate interference with family life, it would drain the rule of any practical significance. It would mean that deportation would constitute a disproportionate interference with private life in the ordinary run of cases where children are adversely affected and the carefully framed conditions in rule 399(a) would be largely otiose. In order to establish a very compelling justification overriding the high public interest in deportation, there must be some additional feature or features affecting the nature or quality of the relationship which take the case out of the ordinary."
18. It must be borne in mind also that any assessment of undue harshness would involve an assessment of the public interest - see MM (Uganda) [2016] EWCA Civ 450:
"23. The context in these cases invites emphasis on two factors, (1) the public interest in the removal of foreign criminals and (2) the need for a proportionate assessment of any interference with Article 8 rights. In my judgment, with respect, the approach of the Upper Tribunal in MAB ignores this combination of factors. The first of them, the public interest in the removal of foreign criminals, is expressly vouched by Parliament in section 117C(1). Section 117C(2) then provides (I repeat the provision for convenience):
"The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal."
24. This steers the tribunals and the court towards a proportionate assessment of the criminal's deportation in any given case. Accordingly the more pressing the public interest in his removal, the harder it will be to show that the effect on his child or partner will be unduly harsh. Any other approach in my judgment dislocates the "unduly harsh" provisions from their context. It would mean that the question of undue hardship would be decided wholly without regard to the force of the public interest in deportation in the particular case. But in that case the term "unduly" is mistaken for "excessive" which imports a different idea. What is due or undue depends on all the circumstances, not merely the impact on the child or partner in the given case. In the present context relevant circumstances certainly include the criminal's immigration and criminal history.
25. The issue is not advanced with respect either by the terms of the Secretary of State's guidance in the immigration directorate instructions or the learning on the use of the term "unduly harsh" in the context of internal relocation issues arising in refugee law. The IDIs are not a source of law and the asylum context of internal relocation issues is far removed from that of Rules 398 to 399. In fact authority in the asylum field emphasises the importance of context (see Januzi [2006] 2 AC 426 per Lord Bingham at paragraph 21).
26. For all these reasons in my judgment MAB was wrongly decided by the Tribunal. The expression "unduly harsh" in section 117C (5) and Rule 399(a) and (b) requires regard to be had to all the circumstances including the criminal's immigration and criminal history."
19. While it is submitted in the grounds at [16], that other factors would have weighed in the child's favour, these are not identified, nor can they be discerned from the evidence and submissions made to the panel. In any event, as noted above, there is no indication, that the weight of the public interest in deporting the appellant was assessed as part of the assessment of undue harshness. While not doing so was an error, it was in the appellant's favour.
20. The assessment of the child's best interests is limited but there are no particular factors which suggest anything out of the ordinary. It may well be in her interest for the family to stay together in the United Kingdom, but that is very far from outweighing the strong public interest in deporting the appellant. The reality is that deportation splits up families; it is parliament's intention that it should do so, unless the high threshold of undue harshness is met. There is in this case nothing which approaches that nor very compelling circumstances in terms of paragraphs 398 of the Immigration Rules.
21. In the circumstances, although the Upper Tribunal erred in not applying the Immigration Rules in effect from 28 July 2014, that error was not material, given the sustainable finding that deportation of the appellant would not have a unduly harsh effect on his child. Further, it cannot be argued that, viewing the determination as a whole, there was a failure adequately to give reasons for that finding, or a failure properly to assess the best interests of the child.
22. Accordingly, I consider that the decision of the First-tier Tribunal did not involve the making of an error of law and I uphold it.

SUMMARY OF CONCLUSIONS
The decision of the First-tier Tribunal did not involve the making of an error of law, and I uphold it.

Signed Date: 26 October 2016

Upper Tribunal Judge Rintoul