Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/01372/2014

THE IMMIGRATION ACTS

Heard at Columbus House, Newport
Sent to parties on:
On 26 January 2017
On 06 March 2017

Before

MR C M G OCKELTON, VICE PRESIDENT
DEPUTY UPPER TRIBUNAL JUDGE L MURRAY

Between

JULIAN PALMER-RHODES
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:
For the Appellant: Miss Dickinson, Fursdon Knapper Solicitors
For the Respondent: Mr Diwnycz, Home Office Presenting Officer

DECISION AND REASONS

Introduction
1. In this appeal, the Appellant appeals against the decision of the First-tier Tribunal (Judge O’Brien) promulgated on 27 January 2016 dismissing his appeal against a decision to make a deportation order under s.3 (5) (a) of the Immigration Act 1971 on the basis that the Appellant’s deportation to the United States of America is conducive to the public good.

2. The Appellant is a citizen of the USA and was born on 9 June 1983. He entered the UK on 19 September 1990 and was granted 12 months leave to enter as a student. He was subsequently granted extensions of leave on the same basis, his last visa expiring on 31 December 2003. He then overstayed and applied for indefinite leave to remain on the grounds of long residency which was granted on 18 March 2010.

3. On 12 April 2012 he was convicted at Bristol Crown Court of possessing with intent to supply a class B controlled drug, namely cannabis; supplying cannabis and possessing a controlled drug Class A, namely MDMA. He was sentenced to four and eight months’ imprisonment in respect of the first and second offences to run consecutively and 14 days in respect of the third offence to run concurrently.

4. On 29 May 2012 he was served with a notice of liability for deportation. That notice was served in error as the Appellant was not a “foreign criminal” as he had not been sentenced to at least twelve months imprisonment without aggregating consecutive sentences and was therefore not subject to the automatic deportation provisions of the UK Borders Act 2007 (see s32.(2) and s.38(1)(b)). On 19 February 2013 the Respondent wrote to him requesting supporting evidence which was received on 1 March 2013. In the decision of 9 July 2014 the Respondent recognised that the liability to deportation letter of 29 May 2012 mistakenly stated that he was liable to deportation under the terms of the UK Borders act 2007 and that the power to deport the Appellant fell within the conducive deportation provisions in s.3(5) (a) of the Immigration Act 1971. Consequently, the Respondent made a decision to deport the Appellant to the USA under s.3(5) (a) of the 1971 Act.

5. The Appellant appealed to the First-tier Tribunal and the appeal was allowed by First-tier Tribunal Judge Britton following a hearing on 4 December 2014. Upper Tribunal Judge A Grubb concluded in a decision promulgated on 20 October 2015 that the decision of the First-tier tribunal involved the making of a material error of law and set it aside, remitting the appeal to the First-tier Tribunal for a de novo hearing.

The Appeal to the First-tier Tribunal

6. The Appellant’s appeal was dismissed by First-tier Tribunal Judge O’Brien. He found that the Appellant was a “foreign criminal” for the purposes of s117D (2)(c)(ii) of the Nationality, Immigration and Asylum Act 2002 as he concluded that the Appellant had been convicted of an offence that had caused serious harm. He further found that paragraph 399 of the Immigration Rules did not apply and in considering paragraph 399A, concluded that although the Appellant was socially and culturally integrated into the United Kingdom and had lived here lawfully for over 19 years which was more than half his life, there would not be very significant obstacles to his integration into the United States. He further concluded that there were no very compelling circumstances over and above those described in paragraphs 399 and 399A. He weighed the public interest in the deportation of foreign criminals against the Appellant’s circumstances and concluded that there were no compelling circumstances that shifted the scales in the Appellant’s favour.

The Appeal to the Upper Tribunal

7. The Appellant sought permission to appeal to the Upper Tribunal on the grounds that the Judge erred in concluding that the Appellant had been convicted of an offence which caused ‘serious harm’ for the purpose of paragraph 398 (c) of the Immigration Rules and/or s.117 (2)(c) (ii) of the NIA Act 2002; in finding that there were not very significant obstacles to the Appellant relocating to the USA; in finding that there were not ‘very compelling circumstances’ to outweigh the public interest in deportation; in failing to carry out an adequate proportionality assessment giving proper weight to his length of residence and his significant family ties; in failing to identify why the public interest was sufficient to justify deportation as proportionate and in further failing to give sufficient weight to the Appellant’s family life in the UK.

8. On 30 March 2016 permission was granted on renewal to the Upper Tribunal by Upper Tribunal Judge Kebede on all grounds.

Discussion

Legal Framework

9. Paragraph 396 of the Immigration Rules provides that:
“Where a person is liable to deportation the presumption shall be that the public interest requires deportation…”

10. Paragraph 397 provides that where deportation would not be contrary to the UK’s obligations under the Refugee Convention or the Human Rights Convention “it will only be in exceptional circumstances that the public interest in deportation is outweighed.” Before that paragraph can apply, a decision has to be made that deportation would not be contrary to the UK’s obligations under those Conventions.

11. Paragraph 398 of the Immigration Rules states as follows:

“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 and in the public interest 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 and in the public interest 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 and in the public interest because, in the view of the Secretary of the 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, the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraph 399 and 399A.”

12. Paragraph 398 of the Immigration Rules, as amended, is underpinned by part 5A of the 2002 Act. Sections 117B and 117C of the 2002 Act set out Parliament’s view as to the public interest in an Article 8 analysis in respect of foreign criminals.

13. “Foreign criminal” is defined by s.117D (2) as:

“a person –
(a) who is not a British citizen,
(b) who has been convicted in the United Kingdom of an offence, and
(c) who –
(i) has been sentenced to a period of imprisonment of at least 12 months,
(ii) has been convicted of an offence that has caused serious harm, or
(iii) is a persistent offender.”

“Serious harm”

14. The grounds impugn the finding of the First-tier Tribunal that the offence or offences caused “serious harm”, asserting that the Judge conflated a description of the offence with an analysis of the harm caused by the offence and contend that there was no evidence upon which the Judge could have concluded that the offence had caused serious harm. It is also asserted that the Judge erred in concluding that the offence itself was enough to conclude that serious harm had been caused and also failed to consider relevant mitigating factors in the sentencing remarks, namely that the starting point for sentencing seemed to reflect a higher degree of cannabis than was in the Appellant’s possession; there was no lavish lifestyle and the Crown Prosecution Service were not asking for a confiscation order. Further, the Judge is said to erroneously have taken account of the sentence that could have been made if the Appellant had been found guilty at a contested trial.

15. Ms Dickinson expanded on the grounds of appeal at the hearing, arguing that there was insufficient evidence that the offence caused serious harm rather than harm. She referred us to the case of LT (Kosovo) v SSHD [2015] EWCA Civ 662, also cited in the grounds.

16. The Respondent’s position with regard to paragraph 398 (c) is set out in the refusal letter dated 9 July 2014 and is that the harm is considered to be serious because the Appellant received a total sentence of 12 months as an aggregate of two or three offences; the offence involved drugs and involved the intent to supply those drugs which would have been to the detriment of the community in the UK.

17. The First-tier Tribunal judge found that the Appellant was a foreign criminal as defined in s117 D (2)(c) (ii). His reasoning for that finding is in paragraph 38 of his decision:

“Instead I know that the Appellant supplied cannabis over 18-24 months. I glean nothing about the effect of that supply from the judge’s sentencing remarks or any pre-sentence report. I am unassisted by the offender management information considered by this Tribunal when granting the Appellant bail and provided to me by Ms Dickinson; it merely reports a low chance of future serious harm. I do, however, accept the Respondent’s submission that the supply of drugs has a detrimental effect on our society. I note that the offence is described as serious and prolonged, and accept that the detrimental effect over that period can properly be categorised as serious harm. I note further that the conviction for supply of cannabis would have resulted in a 12-month sentence had a contested trial been necessary.”

18. Miss Dickinson referred us to LT (Kosovo) v SSHD [2015] EWCA Civ 662. However, that was only a permission decision and she did not refer us to the full decision of the Court of Appeal in LT (Kosovo), DC (Jamaica) v The Secretary of State for the Home Department [2016] EWCA Civ 1246. The two appeals raised a common question identified in paragraph 1 of the judgment: “should an offence of supplying a Class A drug fall to be treated as causing “serious harm” within the meaning of paragraph 398(c) of the Immigration Rules, regardless of the particular circumstances of the offending?” Laws LJ, with whom the other members of the Court agreed, held at paragraph 18 that:

“There is clearly no rule of law which requires every instance of supply of a Class A drug to be treated as causing serious harm for the purpose of deportation decisions, certainly nothing in the text of paragraph 398(c). Nor however, in my judgment, does the rule exclude from its ambit a case where such a view is taken. Nor again is 398(c) limited to the case where the sentenced passed does not apparently reflect the gravity of the offending. I would reject Mr Sedon's submission to the contrary. Serious harm is not defined in the Rules.”

And at paragraph 21 that:

If it were suggested that the tribunals were bound by the Secretary of State's opinion as to serious harm I would disagree. Such a conclusion would nullify the right of appeal and reduce it to a residual Wednesbury review [1948] 1 KB 223 , whereas it is elementary that the right of appeal to the FTT is on the merits (see now section 84 of the Nationality, Immigration & Asylum Act 2002 , to which Mr Sedon took us this morning). That position is not shifted by the reference in paragraph 398(c) to the Secretary of State's view. That feature of the language of the rule cannot, in my judgment, deprive the appellants of their right to a merits appeal. This approach is, I think, supported by Bah [2012] UKUT 00196 and again Rehman [2001] 1 AC 153 . But that is not to say that the reference to the Secretary of State's view is of no significance. The Secretary of State is the primary decision-maker. She has a constitutional responsibility to make judgments as to the force of the public interest in deportation cases. That circumstance has to be balanced against the appellants' right to a merits appeal. In my judgment, that is to be done by requiring the tribunals in a paragraph 398(c) case, while considering all the facts put before them, to accord significant weigh to the Secretary of State's view of “serious harm”. They are not to be bound by it, but they are to treat is an important relevant factor. I should add that I cannot see that this approach is in any way undermined by the new provisions in section 117C and D of the Nationality, Immigration & Asylum Act 2002 , to which Mr Sedon referred this morning.

19. The Court held that the Secretary of State’s view should be taken into account as an important and relevant factor.

20. The First-tier Tribunal in the Appellant’s case therefore properly had regard to the view of the Secretary of State that the supply of drugs has a detrimental effect on society. Ms Dickinson did not seek to argue that the supply of drugs over this period could not be categorised as causing harm. Whether that harm is serious of course depends on the facts of the case. We find that it was entirely open to the First-tier Tribunal on the facts of the case and in the light of the sentencing remarks to find that the harm caused was serious. He gave adequate reasons for that finding. The personal mitigation averred to in the grounds of appeal and accepted by the sentencing judge is not relevant to the seriousness of the harm caused by the supply of drugs nor does it follow from the absence of any ascertainable victim to whom the harm has been caused that it cannot be properly categorised as serious. The seriousness in this case lay in the length of the supply and the detrimental consequences to society of that length of supply.

Paragraph 399A

21. The Appellant impugns the First-tier Tribunal’s findings under paragraph 399A of the Immigration Rules and argues that the First-tier Tribunal erred in finding that there were not ‘very significant obstacles’ to the Appellant relocating to the USA. The grounds further argue that the Judge failed to give sufficient weight to the fact that the Appellant had been brought up in the UK since the age of 7 and had no connection to the USA; gave limited consideration to the practical possibility of living in the USA and gave no weight at all to the effect of having to leave the UK in circumstances where he had spent the vast majority of his life living in the UK and had established a surrogate family here. It is also said that the Judge failed to consider the effect upon Edwin Kirkwood, described as ‘a close family member’.

22. Paragraph 399A provides for an exception to the presumption of deportation as follows:

399A. This paragraph applies where paragraph 398(b) or (c) applies if –
(a) the person has been lawfully resident in the UK for most of his life; and
(b) he is socially and culturally integrated in the UK; and
(c) there would be very significant obstacles to his integration into the country to which it is proposed he is deported.

23. The First-tier Tribunal found at paragraph 41 of the decision that the Appellant satisfied (a) and (b) but not (c) as he was well-qualified, intelligent and a resourceful adult. Further, he concluded that there was no language barrier and there were many social, cultural and economic similarities between the countries. The fact that he had no social or family ties to America was not, he concluded, a very significant obstacle.

24. In Bossade (ss.117A-D-interrelationship with Rules) [2015] UKUT 00415 (IAC) the Upper Tribunal considered the focus of paragraph 399A:

“23. The new paragraph 399A of the Immigration Rules remains similar to the old in considering the foreign criminal deportee’s situation both in the UK and in the country of return. However, so far as concerns the focus on a person’s situation in the UK, time in the UK is no longer relevant as such except in the context of lawful residence (paragraph 399A(a)) and paragraph 399A(b) introduces new criteria that relate to social and cultural integration in the UK. As before, the rule is cast in the present tense: “he is socially and culturally integrated in the UK”. So far as concerns focus on the situation in the country of return, it no longer looks at ‘ties’ per se but at integration and obstacles thereto. By requiring focus on integration both in relation to a person’s circumstances in the UK as well as in the country of return, the new Rules require a much more holistic assessment of an applicant’s circumstances. Thereby they bring themselves closer to Strasbourg jurisprudence on Article 8 in expulsion cases which has always seen consideration of both dimensions as requiring a wide-ranging assessment: see e.g. Jeunesse v Netherlands (GC) App.No. 12738/10, 31 October 2014, paragraphs 106-109. Sections 117A(2)(b) and 3(b) of the 2002 Act also utilise the concept of “integration into society”. “

25. We find that there is no merit in the argument in the grounds of appeal that the First-tier Tribunal failed, in considering the Appellant’s integration into the United States, to consider his ties to the UK. Paragraphs 399 A (a) and (b) focus on the ties to the UK which the First-tier Tribunal accepted were established. The focus of paragraph 399A (c), however, is on obstacles to integration. Ms Dickinson was able to advance no other obstacle to integration other than his lack of contacts there. The First-tier Tribunal accepted that he had no contacts in the United States but gave cogent reasons why that would not amount to a very significant obstacle. Although the grounds assert that limited consideration was given to practical possibility of living in the United States, no evidence in that regard was referred to in the grounds or by Ms Dickinson and no argument advanced as to how any practical difficulty could amount to a very significant obstacle to integration.

The Proportionality assessment

26. The remaining grounds of appeal relate to the First-tier Tribunal’s assessment of proportionality under Article 8. The grounds assert that First-tier Tribunal failed to conduct a proportionality assessment taking into account the relevant factors; gave no consideration to the fact that the Appellant’s offence was in the lower category (paragraph 398 (c)) and that therefore less compelling circumstances were required to meet a test of proportionality; failed to give sufficient weight to the Appellant’s length of residence and the grant of indefinite leave to remain and gave too much weight to the offences when balanced against his ties to the UK and lack of ties to the USA. It is also argued that the First-tier Tribunal failed to identify why the public interest was sufficient to justify deportation in the light of the circumstances of the offence, the mitigation, the Appellant’s behaviour since leaving prison and the assessment by the Appellant’s Offender Manager that there was a low risk of future serious harm. It is also contended that the Judge failed to give sufficient weight to the Appellant’s family life in the UK.

27. Having found that the Appellant was a foreign criminal and that he did not meet the requirements of paragraph 339 and 399A the First-tier Tribunal was obliged to give great weight to the public interest in deportation, which could only be outweighed, applying a proportionality test, by very compelling circumstances. In other words, the Appellant had to demonstrate a very strong claim indeed (see Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60 paragraphs 38, 66 and 81). At paragraph 50 of Hesham Ali Lord Reed concluded:

“50. In summary, therefore, the tribunal carries out its task on the basis of the facts as it finds them to be on the evidence before it, and the law as established by statute and case law. Ultimately, it has to decide whether deportation is proportionate in the particular case before it, balancing the strength of the public interest in the deportation of the offender against the impact on private and family life. In doing so, it should give appropriate weight to Parliament’s and the Secretary of State’s assessments of the strength of the general public interest in the deportation of foreign offenders, as explained in paras 14, 37-38 and 46 above, and also consider all factors relevant to the specific case in question. The critical issue for the tribunal will generally be whether, giving due weight to the strength of the public interest in the deportation of the offender in the case before it, the article 8 claim is sufficiently strong to outweigh it. In general, only a claim which is very strong indeed - very compelling, as it was put in MF (Nigeria) - will succeed.”

28. The grounds of appeal do not acknowledge or recognise the nature and strength of public interest engaged in cases of this sort. Contrary to the assertion in the grounds of appeal, it is clear from the First-tier Tribunal’s reasoning at paragraphs 42 to 47 that the Judge conducted a proportionality exercise, weighing in the balance all the relevant factors on both sides of the scales and giving appropriate weight to the public interest. He considered the strength of the Appellant’s ties in the UK and that he was here lawfully for 19 of the 25 years of his residence. He accepted that he had spent his formative years, from the age of 7, in the United Kingdom and that his ‘quasi-family’ ties were forged whilst he was here lawfully. He also took account of the fact that the Appellant had not reoffended, had reintegrated himself into society and had been gainfully employed since his release from detention. He also found, and it was open to him on the evidence so to do, that his offence was serious and prolonged, caused serious harm and that he was aged 26 when he commenced supplying cannabis. He considered all of the relationships relied on by the Appellant, namely with the Kirkwood siblings he had lived with in a family who had looked after him in the United Kingdom and his relationship with his girlfriend. He found that these relationships could continue via modern means of communication. He came to this conclusion because the relationship with Laura Kirkwood involved visiting a few times a year and although the relationship with Edwin Kirkwood involved frequent contact he had heard and seen no evidence that the circumstances could be described as compelling. We do not accept that Appellant’s submission that the First-tier Tribunal should have found that family life existed for the purposes of Article 8 between the Appellant and the two siblings. There was no blood relationship, they were all adults, lived apart and had their own families. In the circumstances, the evidence before him did not support a finding of family life and the absence of such a finding was not an error of law.

29. Miss Dickinson also argued at the hearing that in considering whether there were very compelling circumstances, the Appellant should have been given credit for the fact that he obtained a University degree in 2011. She argued that there must be a distinction between someone who has committed offences and not contributed to society and someone such as the Appellant who had sought to work as hard as possible and had achieved much. We do not accept the submission that the judge was required to give credit in the balancing exercise for the Appellant’s work or education whilst he was here without leave. The Appellant had worked illegally between 2003 and 2009 when he had no leave to remain and had on his own admission funded his University education in part by the supply of cannabis. These were not matters therefore to which the First-tier Tribunal was obliged to give weight on the Appellant’s side of the scales in the balancing exercise.

30. In the circumstances, the conclusion that the public interest prevailed over the private life ties of the Appellant was open to the First-tier Tribunal on the evidence, was adequately reasoned, took all material factors into account and his assessment of where to strike the balance was lawful.

Conclusions:
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.

We do not set aside the decision.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge L J Murray