Tribunal decisions

The decision

IAC-AH-DN-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/01488/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20th March 2017
On 5th April 2017

Before

UPPER TRIBUNAL JUDGE FRANCES

Between

S A C
(anonymity direction made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr T Bahja, instructed by Jesuis Solicitors
For the Respondent: Mr S Staunton, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Jamaica born in 1970. She appeals against the decision of First-tier Tribunal Judge Juss, dated 13th October 2016, dismissing her appeal against deportation.
2. Permission to appeal was granted by Upper Tribunal Judge Reeds on the following grounds: “It was arguable that the First-tier Tribunal Judge when reaching his overall conclusion as to whether it was unduly harsh for the Appellant’s child to accompany her to her country of nationality, failed to have regard to the principles set out in the decision of the Secretary of State v CS (case C-304/2014) CJEU (Grand Chamber) and in particular in light of any genuine and present threat taking into account the evidence relating to her conduct, risk of reoffending and that she was the sole carer of a British citizen child. I grant permission on all grounds.”
3. In the Rule 24 response, the Respondent stated that in CS Morocco the court concluded at paragraph 50 that ‘in exceptional circumstances a Member State may adopt an expulsion measure provided that it is founded on the personal conduct of that third country national, which must constitute a genuine, present and sufficiently serious threat adversely affecting one of the fundamental interests of society of that Member State, and that it is based on the consideration of the various interests involved, matters which are for the national court to determine.’ It was submitted that the judge considered the ratio in CS Morocco and the Court of Appeal case of MM (Uganda), and having considered the Appellant’s serious offence involving supply of illegal drugs arrived at conclusions which were open to him.

Submissions
4. Mr Bahja relied on his skeleton argument and submitted that there were three errors of law. The first one occurred at paragraph 17 of the judge’s decision in relation to the EU point and the judge’s conclusions set out therein were inadequate. The judge found that: “the Appellant does not discharge the burden of proof for the reasons set out in the refusal letter. Moreover, the case C304/14 now makes it clear that ‘in exceptional circumstances a Member State may adopt an expulsion measure’, which is based on ‘the personal conduct of a third country national’, provided that it does ‘constitute a genuine, present and sufficiently serious threat to one of the fundamental interests of society of that Member State’. The selling of class A drugs was a genuine, present and sufficiently serious threat that did affect the fundamental interests of society. The Secretary of State was entitled to take the course of action she did. The question is whether it is ‘unduly harsh’ under paragraph 399A for her to do so.”
5. Mr Bahja relied on paragraphs 40 to 42 of the judgment of CS in which the court held:
“40. In this context, it must be held that where the expulsion decision is founded on the existence of a genuine, present and sufficiently serious threat to the requirements of public policy or a public security, in view of the criminal offences committed by a third country national who was the sole carer of children who are Union citizens, that decision could be consistent with EU law.
41. On the other hand, that conclusion cannot be drawn automatically on the basis solely of the criminal conduct of the person concerned. It can result, where appropriate, only from a specific assessment by the national court of all the current and relevant circumstances of the case, in the light of principle of proportionality, of the child’s best interests and of the fundamental rights whose observance the court ensures.
42. That assessment must therefore take account in particular of the personal conduct of the individual concerned, the lengthy and legality of his residence on the territory of the Member State concerned, the nature and gravity of the offence committed, the extent to which the person concerned is currently a danger to society, the age of the child at issue and his state of health as well as his economic and family situation.”
6. Mr Bahja submitted that the judge based his assessment solely on the Appellant’s conviction and this was insufficient. He referred me to page 62 of the Appellant’s bundle where the OASys Report stated that there was a low risk of reoffending and the Appellant had also accepted full responsibility for this offence, although she maintained that the knife was not in the car for any reason other than she had forgot to take it out. The Appellant had one previous conviction in 1996 for obstructing powers of search for drugs. The current offence was not an escalation in seriousness from previous offending and was not part of an established pattern of similar offending. The Appellant was assessed as posing a medium risk of serious harm and a low risk of reoffending. She admitted selling drugs to fund her drug misuse.
7. Mr Bahja submitted that given the opinion in the OASys Report, the Appellant did not satisfy the ‘serious grounds’ test. The judge’s conclusion at paragraph 17 was not open to him on the basis of what was in the OASys Report and on the findings of Judge Robertson on which he relied.
8. Mr Bahja relied on paragraph 14 of his skeleton argument and the case of LG and CC (EEA Regs: residence; imprisonment; removal) Italy [2009] UKAIT 0024 at paragraph 106 where the Tribunal held: “in the ‘serious grounds’ category … it must be emphasised that it is the present risk arising from conviction for the offence in question that must be established.” Mr Bahja also relied on the Secretary of State for the Home Department v Straszewski [2015] EWCA Civ 1245 where the Court of Appeal indicated that personal conduct and the risk of reoffending were held to be the essential factors in deciding the deportation of an EEA national. Mr Bahja submitted that the same principle would apply to the deportation of a Zambrano carer from the UK on account of their criminal conduct.
9. Mr Bahja submitted that the judge’s finding at paragraph 17 was unreasoned and the conviction itself was insufficient to support such a finding. Further, the finding that the Appellant did constitute a genuine, present and sufficiently serious threat was one which was not open to the judge on the evidence before him because of the low risk of reoffending and the fact that there was no escalation in criminal behaviour.
10. In relation to the second ground, Mr Bahja relied on Heshim Ali and stated that the judge should first assess the public interest and then consider all relevant factors in assessing proportionality. The judge had failed to consider the best interests of the child. The judge’s rejection of the Appellant’s submission, that the child should be able to remain in the UK and benefit from his British citizenship, was perverse. The Appellant had been in prison for thirteen months, but this was not the most serious offence. The judge had failed to set out how his findings of fact had affected his assessment of proportionality. The judge’s reasoning at paragraphs 18 and 19 were not clear.
11. Mr Bahja submitted that the judge had also applied the wrong test in referring to CT Vietnam [2016] EWCA Civ 488. In that case the court was considering whether there were very compelling circumstances. In this case the test was ‘unduly harsh’. The judge had failed to apply the correct test and failed to set out the facts upon which he based his findings.
12. Mr Staunton relied on the Rule 24 response and submitted that, although the decision of Judge Juss was short, he had effectively adopted the previous findings of fact set out in detail in Judge Robertson’s decision dated 20th April 2015. Those findings were not challenged. An error of law was found on the basis that she applied the wrong Immigration Rules. Judge Juss was entitled to proceed on the basis that those factual findings were still pertinent and had not been overturned. It was not necessary for the judge to set out those findings and he had adequately summarised the case at paragraphs 2 to 7.
13. In essence it was accepted that the Appellant was the primary carer of a British citizen child and therefore the issue before Judge Juss was whether it was unduly harsh for the Appellant’s 6 year old child to accompany her to Jamaica. Given that she had been sentenced to two and a half years’ imprisonment then the public interest was in favour of her deportation and that was the starting point, which the judge adopted. The judge then looked at points relevant to Article 8 and it was clear, on the findings made by Judge Robertson, that he had taken into account all relevant points. If Judge Robertson’s facts were set out immediately before paragraph 17, then there was clearly no error of law. However, there was no need to repeat the facts in order to justify the finding at paragraph 17. The judge had taken into account the OASys Report and the low risk of reoffending. His finding that there was a genuine, present and sufficiently serious threat was not perverse.
14. In relation to ground 2, Mr Staunton submitted that on the basis of Judge Robertson’s findings, the judge’s conclusions at paragraph 19 and 20 were open to the judge on the evidence before him. Mr Staunton submitted that there was no merit in ground 3. The judge had applied the correct test in this case.
15. In response Mr Bahja submitted that there were no findings of fact at paragraph 18 just a reference to CT and therefore the judge should have set out the relevant facts which he had considered and demonstrated how those facts led him to his conclusions. There had to be a present risk flowing from the conviction and, in this case, it was not made out. The Appellant was not a present risk because there was no escalation of offending behaviour and she was at low risk of re-offending. This meant that the threshold test was not met and the judge had erred in law in finding otherwise.

Discussion and Conclusion
16. The Appellant claims to have arrived in the UK in 1991. Her eldest daughter was born on 30th March 1992 and the Appellant came to the attention of the authorities on 24th April 1994 as a suspected crack cocaine supplier. In December 1995, she married a British citizen but her application for leave to remain on the basis of her marriage was refused in 1997. On 5th June 1996, she was convicted of obstructing powers of search for drugs and was sentenced to twelve months’ conditional discharge and ordered to pay the costs of £50.
17. On 9th March 2005 the Appellant applied for indefinite leave to remain on long residency grounds with S, her daughter, as her dependant. S also applied for British citizenship and this was granted in September 2007. On 6th June 2010, the Appellant’s son, C, was born. The Appellant and C were granted indefinite leave to remain outside the Immigration Rules. C is now a British citizen.
18. On 18th July 2013 the Appellant was convicted of two counts of possession of class A drugs with intent to supply and having an article with a blade in a public place. On 19th July 2013, she was sentenced to two terms of imprisonment of 30 months and 4 months to be served concurrently. The Respondent subsequently signed a deportation order.
19. The Appellant’s appeal against deportation was allowed by Judge Robertson on Article 8 grounds, but set aside by Upper Tribunal Judge Southern in a decision dated 15th September 2015. Judge Robertson had applied the wrong version of the Immigration Rules; she applied the ‘reasonableness’ test rather than the test of ‘unduly harsh’. Further, the judge had also erred in conflating her assessment under the wrong version of the Rules with European law. Judge Southern stated at paragraph 4 of his decision:
“In any event the child’s father who had been said to have played a vital role in the life of the child has with assistance from another relative a sister provided care for the child while the Appellant was in prison. The reasoning in that assessment is made through the prism of reasonableness rather than the correct question of whether it would be unduly harsh.”
20. The appeal was remitted to the First-tier Tribunal and came before Judge Juss who concluded that Judge Robertson’s decision was detailed, comprehensive and had not been challenged in relation to the basic facts before him. Accordingly, he relied on those facts and heard submissions from the parties. He stated at paragraph 3:
“It is a further feature of this case that the Appellant admitted her offences and pointed out that the last conviction was her most serious offence and that she had learnt a very serious lesson that she is embarrassed and extremely remorseful. She has reflected on what she has done in prison and does not intend to reoffend. She wishes to make a meaningful contribution to society and to be a good mother to her children. She also relied upon the fact that she was not a threat to the public and that her OASys Report was favourable to her. She claims that she is in a genuine and subsisting relationship with her son who is a British citizen and who will have no one to care for him in the UK if he is deported because she is his primary carer. If he has to go to Jamaica with her he will be deprived of the benefits and the entitlements of being a British citizen. If she is deported without him it will be unduly harsh for him. These matters are all set out by Judge Robertson in her detailed decision at paragraphs 9 and 10.”
21. The judge then set out the sentencing remarks and noted that the Appellant was of previous good character and the offence was not to finance the Appellant commercially, but in order to help her own drug habit. It was accepted that the Appellant was the primary carer of a British citizen child and the consequence of deporting the Appellant would be that the child would be unable to continue to live in the UK.
22. The judge set out the relevant test to be applied: CS Morocco (C-304/2014), “in exceptional circumstances a Member State may adopt an expulsion measure which is based on the personal conduct of the third country national provided that it constitutes a genuine, present and sufficiently serious threat to one of the fundamental interests of society of that Member State [the ‘serious grounds’ test]. The judge found that, the Appellant’s conduct, selling class A drugs, was a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.
23. The judge adopted the findings of Judge Robertson, at paragraphs 2 and 3, where he took into account the OASys Report, her relationship with her son, and her length and legality of residence. The judge took into account all the factors referred to in paragraph 42 of CS Morocco. It was not necessary for the judge to repeat his previous findings in concluding that the ‘serious grounds’ test was met.
24. On the facts that are set out at paragraphs 2 and 3, which the judge uses as a basis for his findings, it cannot be said that his finding at paragraph 17 was irrational. The low risk of reoffending did not mean that the Appellant was not a genuine, present and sufficiently serious threat. The judge took into account all relevant circumstances and his conclusion was one which was open to him on the evidence before him.
25. The judge identified that the issue in this case was whether it was unduly harsh for the Respondent to deport the Appellant. It is quite clear that the judge applied an ‘unduly harsh’ test and not one of ‘very compelling circumstances’, notwithstanding his reference to CT. The quote from CT, set out at paragraph 18, is an acknowledgement of the weight to be attached to the public interest. The judge also acknowledges that in CT the person was sentenced to four years’ imprisonment, unlike the Appellant. He deals with this adequately at paragraph 19.
26. The judge considered whether the Appellant’s personal circumstances and that of her child were sufficient to outweigh the public interest and he concluded: “In this case, although the Appellant was not sentenced to four years’ imprisonment, the fact is the child is 6 years of age and has not formed an independent family unit of his own and can have his interests entirely well protected by being with his mother in Jamaica.” The judge found that it was in the child’s best interests to remain with his mother and, on the particular facts of the case, the public interest outweighed the best interests of the child.
27. The judge took into account the fact that the Appellant was the carer of a British citizen child and that the British citizen child would be removed from the UK. The judge rejected the submission made by the Appellant’s representative that the Appellant’s son was entitled to an upbringing in the UK. The judge’s finding that it was not unduly harsh for C to live in Jamaica with his mother was one which was open to him on the evidence before him.
28. I reject Mr Bahja’s submission that the judge failed to consider Article 8 outside the Immigration Rules because the judge balanced the best interests of the child and the Appellant’s personal circumstances against the public interest. In this case the result was the same under the Rules and outside the Rules: On the facts, the Appellant’s deportation was proportionate.
29. The judge took into account all relevant considerations and applied the correct test under European law and under the Immigration Rules. His conclusions were open to him on the evidence before him. Any lack of reasoning was not material. Accordingly, I find that there was no error of law in the judge’s decision dated 13th October 2016 and I dismiss the Appellant’s appeal.

Notice of decision
Appeal dismissed

Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

J Frances
Signed Date: 3rd April 2017

Upper Tribunal Judge Frances

TO THE RESPONDENT
FEE AWARD
I have dismissed the appeal and therefore there can be no fee award.

J Frances
Signed Date: 3rd April 2017

Upper Tribunal Judge Frances