(Immigration and Asylum Chamber) Appeal Number: DA/01326/2012
THE IMMIGRATION ACTS
Heard at Nottingham
on 11th June 2013
on 12th June 2013
UPPER TRIBUNAL JUDGE HANSON
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
For the Appellant: In person (previous representatives withdrew due to lack of funding).
For the Respondent: Mrs K Heath Senior Home Office Presenting Officer.
DETERMINATION AND REASONS
1. This is an appeal against a determination of a panel of the First-tier Tribunal composed of First-tier Tribunal Judge Colyer and Ms J Endersby (hereinafter referred to as ‘the Panel’) who, in a determination promulgated on the 7th March 2013, dismissed the appellant’s appeal against the order for his deportation made under section 32(5) UK Borders Act 2007.
2. The appellant was born on the 22nd April 1979 and is a citizen of Jamaica. He entered the United Kingdom lawfully as the spouse of his wife, who I shall refer to as J, on 19th February 2010. They have a child M born in March 2011.
3. The deportation order was made following the appellant’s conviction at Snaresbrook Crown Court on 25th November 2011 for drug related offences. Such was the magnitude of the supply activities prosecution Counsel advised HHJ T King during the sentencing exercise that the incidents of supply of Class A drugs in the location had fallen by 60%. It was also noted these were offences committed, with others, on an organised basis.
4. The Panel considered all the evidence they were asked to consider, including the effect of the order on the appellant, his wife, and their child, before concluding that the decision to deport him was proportionate and so the appeal was dismissed on all grounds.
5. The application for permission to appeal was initially refused but thereafter granted by the Upper Tribunal on the basis it was arguable the Panel failed to carry out a proper analysis as required by paragraph 399 of the Immigration Rules before considering the Article 8 grounds.
6. This is a deportation appeal in which both the Immigration Rules and Article 8 ECHR are relevant. In Izuazu (Article 8 – new rules)  UKUT 45 (IAC) the Tribunal held that:
(i) In cases to which the new Immigration Rules introduced as from 9 July 2012 by HC 194 apply, Judges should proceed by first considering whether a claimant is able to benefit under the applicable provisions of the Immigration Rules designed to address Article 8 claims. Where the claimant does not meet the requirements of the rules it will be necessary to go on to make an assessment of Article 8 applying the criteria established by law. The Upper Tribunal observation in MF (Article 8-new rules) Nigeria  UKUT 00393 (IAC) to the same effect is endorsed;
(ii) The procedure adopted in relation to the introduction of the new Rules provided a weak form of Parliamentary scrutiny; Parliament has not altered the legal duty of the Judge determining appeals to decide on proportionality for himself or herself;
(iii) There can be no presumption that the Rules will normally be conclusive of the Article 8 assessment or that a fact-sensitive inquiry is normally not needed. The more the new Rules restrict otherwise relevant and weighty considerations from being taken into account, the less regard will be had to them in the assessment of proportionality.
7. The grounds argue that the Panel erred in their consideration of paragraph 399 (b) in that they found there was another family member who is able to care for the child if the appellant is deported. It is argued that the Panel should have considered this question by reference to whether there was a family member able to care for the child to a standard that is adequate to meet the child’s particular needs. It is argued that the needs of J and the effect of the loss of the appellant through deportation would mean she was unable to care for M to the required standard as a result of which the child will suffer.
8. J filed two witness statements which were considered by the Panel and she gave oral evidence. There is specific reference to her in paragraphs 38 to 44 of the determination, including a letter she wrote to the respondent on 16th August 2010 outlining marital problems. She gave oral evidence and was cross-examined as noted in paragraphs 9 to 16. It is clear the Panel considered with the degree of care required in an appeal of this nature the effect of the order upon J and M and the impact upon her ability to meet her son’s needs. In paragraph 44 the Panel found:
44. In his submissions Mr Ali contended that [J] is not able to care for the young child in the appellant’s absence. It is suggested that she is struggling to cope and had a nervous breakdown and panic attacks. We find no credible evidence that the child is significantly suffering or put at risk due to mother’s current circumstances. We are informed that there are arrears of rent and she is facing salary reductions. But we are not persuaded that these circumstances are of sufficient weigh to counterbalance the public interest in deporting a convicted drug dealer.
9. It was found there is another family member in the UK, namely M’s mother J. It was found the appellant had not substantiate his claim to the required standard to show that if he was deported the effect upon J will be such that she will be unable to parent M and meet his basic and other relevant needs. Before me today J gave evidence and repeated the difficulties she will face but also stated that she is a little better than she was, in herself. I accept she is upset by the decision and there will have to be re-adjustment to her lifestyle but I also formed the impression she is a capable woman and devoted mother who will do all she can to meet the needs of her child. It may be difficult but there is insufficient evidence that she is incapable of doing so or that M will suffer physical or emotional harm such as to make the decision disproportionate when the appellant is deported.
10. It is not disputed that the best interests of M are to be brought up by two loving parents and the Panel were aware of this. The fact of the matter, however, is that when considering the public interest, as defined in the case of Masih  UKUT 00045, and balancing this against the factors relied upon by the appellant, the legitimate aim relied upon by the respondent carried greater weight. This is a finding reinforced on the facts by the judgment of Laws LJ in SS ( Nigeria)  EWCA Civ 550.
11. A careful reading of the determination shows all relevant factors were considered with the degree of care required in a case of this nature. I find the Panel gave adequate reasons for their findings and undertook the proportionally assessment in an appropriate way. I find no public law grounds have been proved to apply to enable a successful challenge to the proportionality assessment. The grounds are in effect a disagreement with the conclusions reached and an attempt to re-argue point already considered by the Panel. No material error of law is proved. The decision is within the range of permissible decisions open to the Panel on the evidence.
12. There is no material error of law in the First-tier Tribunal Panel’s decision. The determination shall stand.
13. The First-tier Tribunal made make an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.
I continue that order (pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008).
Upper Tribunal Judge Hanson
Dated the 11th June 2013