Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/01678/2013

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 28 March 2014
On 16th April 2014

Before

UPPER TRIBUNAL JUDGE ESHUN

Between

MR ALUSINE KAMARA

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms F Mustapha, Solicitor
For the Respondent: Mr G Jack, HOPO

DECISION ON ERROR OF LAW

1. The Secretary of State has been granted permission to appeal the determination of the First-tier Tribunal (FtTJ Tipping and Mrs M Padfield JP) allowing the appeal of the appellant against the respondent's decision made on 8 August 2013 to deport him as a foreign criminal as defined in Section 32(1) of the UK Borders Act 2007 was allowed by First-tier Tribunal Judge Tipping and Mrs M Hadfield JP.

2. The appellant is a citizen of Sierra Leone born on 29 September 1987. He arrived in the UK on 23 October 1993, when he was 6 years old. He was brought to the UK by his half-sister who had indefinite leave to remain in the UK as it was claimed that his father and sole carer in Sierra Leone had died. He was granted indefinite leave to remain in the UK on 30 August 1995.

3. On 23 November 2011, the appellant was convicted of an offence of possession of a Class A drug (crack cocaine) with intent to supply and sentenced to three and a half years' imprisonment. In his sentencing remarks, the trial Judge noted that the amount of cocaine found on the appellant was relatively small, but remarked that the courts regard the supply of Class A drugs as very serious. The appellant had changed his plea to guilty only at the last moment, for which the trial Judge was able to reduce the sentence by only one eighth. The trial Judge noted that the appellant already had a conviction for a similar offence and, at Southwark Crown Court in June 2008, had been leniently in the trial Judge's view, sentenced to a community order which he had subsequently breached. The trial Judged noted that the appellant was not himself a drug user but was simply concerned to make money.

4. The respondent was granted permission to appeal the First-tier Tribunal's decision by UTJ Kopieczek on the basis that the Tribunal did not give adequate consideration to the public interest in deportation going beyond the risk of re-offending, as expressed in various authorities. There was reference to this aspect of the public interest in the determination but it is arguable that the issue should have received more detailed consideration. Furthermore it was arguable that the Tribunal's finding that the appellant's removal would amount to a disproportionate interference with his family life as well as his private life disclosed an error of law due to the lack of evidence of family life. The Upper Tribunal Judge did not rule out grounds which sought to re-argue factual matters.

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5. Ms Mustapha sought to argue that the Tribunal properly directed itself to the public interest at paragraphs 17, 18, 24 and 29 where it can also be seen that the Tribunal had the public interest uppermost in its mind. The Tribunal did not have to repeat in mantra fashion what the public interest was. I do not accept Ms Mustapha's submission because whilst the Tribunal made references to the public interest, I find that they did not attach sufficient weight to the public interest in the deportation of foreign criminals as emphasised by the Court of Appeal in SS (Nigeria) [2013] EWCA Civ 550. The Tribunal placed significant weight on the appellant's low risk of re-offending. The Tribunal failed to consider and place weight on the assessment in the OASYs report that he was at medium risk of harm to the public. They rather placed more weight on the appellant's "bitter remorse" over his offences and his regret over the damage that they have inflicted on what appeared to be a promising career in design. The Tribunal failed to have regard to the comment made by the Court of Appeal in DS (India) 2009 EWCA Civ 544, that event if it could properly be said that there was no risk of re-offending the respondent would be entitled to say in appropriate circumstances that the removal of an offender from the country was in the public interest. There was no discussion by the Tribunal about the seriousness of the offence and the need to deter others and to prevent serious crime generally and to uphold the public abhorrence of such offending.

6. The Tribunal had doubts as to the credibility of the Footlocker job offer. Ms Mustapha said she explained to the Tribunal that she had spoken to the lady who made the offer and had asked her to give her something in writing and hence the email which confirmed the job offer. She acknowledged that this evidence was not in the determination. In any event I find that Ms Mustapha as Counsel for the appellant could not give evidence on his behalf.

7. The Tribunal then went on to consider matters raised on the appellant's behalf as constituting exceptional circumstances. In finding that the appellant has no ties to Sierra Leone and that his mother would not be traceable now, the Tribunal failed to consider his assertion at page 45 of the OASYs report that he is in contact with his mother. Ms Mustapha said that she asked the appellant to explain this statement at the hearing but it appears that the Tribunal did not record his explanation or make a finding on it.

8. I find that the Tribunal construed the existence of family members in the UK as amounting to family life. The appellant is now 26 years old. There was no evidence as to what sort of relationship he had with his sister Memuna and other members of his family. There was no finding by the panel as to whether the appellant's relationship with his sister and other members of the family constituted family life within the meaning of Kugathas, whether there was a dependency between the appellant and his sister and other family members which went beyond the normal emotional ties between adult members of the family.

9. In light of these errors, I find that the Tribunal's decision cannot stand. I set it aside in order for it to be re-made.

Directions

The appeal is remitted to be reheard by a First-tier Tribunal Judge other than Judge Tipping and Mrs M Padfield JP, at Taylor House.

Time Estimate - 3 hours

No. of witnesses - to be notified by appellant's solicitors

No interpreter required

Any further documents the appellant wishes to rely on should reach the Tribunal and the respondent 7 days before hearing.

Signed Date

Upper Tribunal Judge Eshun