Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/02000/2014

THE IMMIGRATION ACTS

Heard at Royal Courts of Justice
Decision & Reasons Promulgated
On 21 March 2016
On 7 April 2016

Before

UPPER TRIBUNAL JUDGE KOPIECZEK

Between

Secretary of State for the Home Department
Appellant
and

MOHAMMED SAJJAD
Respondent

Representation:

For the Appellant: Mr C Avery, Home Office Presenting Officer
For the Respondent: In person

DECISION AND REASONS
1. The appellant in these proceedings is the Secretary of State. However, for convenience I refer to the parties as they were before the First-tier Tribunal.
2. Thus, the appellant is a citizen of Pakistan, born on 1 September 1971. He appealed to the First-tier Tribunal ("FtT") against a decision to make a deportation order against him, the decision having been made on 14 October 2014.
3. His appeal came before First-tier Tribunal Judge ("FtJ") Perry on 10 December 2014 whereby he allowed the appeal. Although he stated at the end of his decision that the appeal was dismissed, the error was later corrected in an amended decision.
4. The Secretary of State's complaints about the FtJ's decision can be summarised as follows. It is asserted that the FtJ treated the best interests of the appellant's children as dispositive of the appeal, and had failed to consider Article 8 and the children's best interests through the 'lens' of the Immigration Rules.
5. It is also asserted that the FtJ gave no consideration to various aspects of the public interest in deportation, having regard to the seriousness of the offending and the number of offences committed by the appellant. He had not considered whether it was reasonable for the appellant's family to relocate to Pakistan with him, wrongly assuming that the appellant's deportation would result in splitting up the family.
6. The FtJ's cursory reference to section 117 of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") at the end of the decision was wholly inadequate. Furthermore, it is argued that it was not explained why the appellant's deportation would have an "unduly harsh" effect.
7. The background to the respondent's decision to make a deportation order against the appellant concerns in particular his convictions on 13 October 2000 and 22 June 2012 for drugs offences. On 13 October 2000 he was convicted in the Crown Court at Reading of possession of a controlled drug with intent to supply, receiving a sentence of four years' imprisonment. On 22 June 2012 he was convicted of two offences of possession with intent to supply class A drugs and one offence in relation to facilitating the acquisition, acquiring or possession of criminal property, for which he received a total sentence of three years' imprisonment.
8. Otherwise, between 19 July 1990 and 22 June 2012 the appellant had been convicted on fifteen separate occasions of what are said to have been a total of 74 offences, including theft, burglary, deception, assault, perverting the course of justice and possession of drugs.
9. An earlier decision to make a deportation order was the subject of an appeal before FtJ Aziz. That decision of the respondent was based on the convictions of 22 June 2012 but was wrongly predicated on the basis that the appellant had been sentenced to a term of imprisonment of at least four years, whereas his sentence was one of three years imprisonment. Accordingly, the respondent had applied the wrong paragraphs of the deportation Immigration Rules. FtJ Aziz allowed the appeal to the limited extent that the matter be remitted to the respondent for a fresh decision to be made. That resulted in the decision which is the subject of the proceedings before me.
10. In order to put into context the decision of Judge Perry, it is necessary to refer to the fresh decision made by the respondent after the matter had been remitted by Judge Aziz. At [18] of the decision letter the respondent referred to the fact that the appellant's appeal had previously been allowed, to the extent that the decision needed to be reconsidered by the Secretary of State. At [24] of the same letter it states that the appellant's deportation is conducive to the public good and in the public interest because he had been convicted of an offence for which he had been sentenced to a period of imprisonment of at least four years. The decision letter goes on to state that "Whilst deportation action has been initiated against you on the basis of your latest conviction, it is noted that you were convicted on 13 October 2000 at Reading Crown Court of possessing a controlled drug with intent to supply and sentenced to 4 years' imprisonment". In the same paragraph it concludes that in accordance with paragraph 398 of the Immigration Rules, the public interest requires his deportation unless there are very compelling circumstances over and above those described in the exceptions to deportation set out at paragraphs 399 and 399A.
11. In other words, that (new) decision of the respondent relies on the appellant's conviction on 13 October 2000 which resulted in a sentence of imprisonment of four years' imprisonment.
12. Judge Perry set out the appellant's history of offending and quoted verbatim from the sentencing remarks, but in relation to the offence on 22 June 2012. It is also to be remembered that in respect of those offences the appellant received a sentence of three years' imprisonment.
13. Judge Perry referred to the evidence of the appellant's wife in her written statement, and the written representations of the appellant's former solicitors. The appellant gave evidence at the hearing before Judge Perry, as did a friend of the appellant.
14. At [34], referring to s.32(5) of the UK Borders Act 2007, he said that the respondent must make a deportation order in respect of a foreign national who has been convicted in the UK of an offence and been sentenced to a period of imprisonment of at least 12 months, unless one of the exceptions in the 2007 Act applies. At [36] he referred to the respondent's assertion that the appellant needed to establish a very strong Article 8 claim over and above the circumstances described in the exceptions to deportation (set out at paragraphs 399 and 399A), seemingly a reference to [24] of the decision letter, and relating to a sentence of four years or more.
15. At [37] Judge Perry stated that there was no evidence that the appellant's separation from his family whilst he has been in prison had weakened the family life of the unit, and he concluded that the family had survived the separation. He concluded that it was apparent from the evidence that the family looked upon permanent separation following deportation "with considerable anxiety". He stated that he found the witness called on behalf of the appellant to be a balanced and objective witness, that witness having given evidence about the worry faced by the appellant's wife and children in connection with the deportation proceedings.
16. He stated at [38] that he was impressed with the appellant's wife's strong loyalty to the appellant, and concluded that she remains very dependent on him. He found that the appellant, his wife and the three children, continue to live together in the family home. He concluded that the appellant's wife is committed to maintaining the integrity and unity of the family in the UK.
17. He found that there was an established family life between the appellant and his wife and children. The children were born on 31 May 2000, 30 January 2003 and 5 March 2004.
18. At [41] he found that the appellant had been in the UK for a considerable part of his life, albeit his actual date of entry was not recorded. He noted that the appellant's wife and three children were all born in the UK. He decided that the starting point was that it was in the best interests of the children to be with both parents, and that generally it is in the interests of the children to have stability and continuity of social and educational provision. He found that it would not be in the best interests of the children to be uprooted and for them to go to Pakistan, a country of which they have no ethnic or cultural experience. He also found that it would not be in their best interests to be separated from the appellant, were he to be deported.
19. At [42], the last paragraph, there is the first and only reference to s.117C of the 2002 Act (referred to by the judge as the 2014 Immigration Act). He stated that the deportation of foreign criminals is in the public interest, and that the more serious the offence committed by a foreign criminal the greater is the public interest in deportation. Noting that the appellant has a genuine and subsisting relationship with his wife and three children, he concluded that the effect of deportation on them would be unduly harsh.
20. Mr Avery relied on the grounds of appeal to the Upper Tribunal, and expanded upon them in submissions. He emphasised that there was no reference in the judge's decision to the appellant's "appalling" criminal history or any appreciation of the damage caused by drug dealing on families and on society in general. It was submitted that the FtJ's decision was one-sided and not a properly balanced proportionality assessment. There was also no assessment of the fact of the appellant's precarious immigration status in the UK with reference to s.117B of the 2002 Act.
21. The appellant, who was unrepresented before me, provided clarification of a recent conviction whereby he was sentenced on 6 January 2016 to a term of 15 months' imprisonment for an offence which he said was one of offering to supply drugs. Generally, he said that his convictions were mainly to do with his use of illicit drugs and the way he grew up in the UK. He said that he had been in the UK for 33 years.
22. It seems to me that there is merit in the respondent's challenge to the decision of the FtJ. On the assumption that the judge considered this to be a case that was governed by the Immigration Rules concerning those sentenced to a period of imprisonment of four years or more, one of the matters that required consideration in terms of the public interest is the extent to which there was a risk of re-offending. Whilst it is not apparent that there was any OASys or pre-sentence report available to the judge, it was nevertheless encumbent on him to make that assessment as part of the public interest consideration. Mere reference to the offences committed by the appellant, or indeed to his evidence that he is rehabilitated, is not sufficient. This alone, in my judgement, is an error of law that requires the decision to be set aside.
23. Furthermore, it is also the case that there is no, or no sufficient, recognition of the public interest in terms of the seriousness of the offences committed by the appellant. The reference in the last paragraph of the FtJ's decision to s.117C of the 2002 Act is inadequate in this respect, there being no analysis of the appellant's particular circumstances. Whilst the judge noted that the deportation of foreign criminals is in the public interest and that the more serious the offence committed the greater is the public interest, that recitation of s.117C is no substitute for a reasoned analysis in terms of why the appellant's serious offending should not result in his deportation, notwithstanding his relationships with his wife and children.
24. Although the FtJ referred to the British citizenship of the appellant's wife and children, and the effect on them of separation, that necessarily could not be sufficient to mean that his deportation was not warranted, having regard to the terms of paragraph 398(c) of the Rules and s.117C of the 2002 Act. S.117C(6) states that in the case of a foreign criminal sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2. Those exceptions relate to length of residence in the UK and integration, and genuine and subsisting relationships with a partner or qualifying child and whether it would be unduly harsh on either for a person to be deported. Qualifying children are defined in s.117D as British citizens or those who have lived in the UK for a continuous period of seven years or more, and qualifying partner means a partner who is a British citizen or someone settled in the UK.
25. In other words, British citizenship, length of residence and integration, and undue harshness in separation are all factors inherent in Exceptions 1 and 2. The FtJ has not in fact identified anything beyond those Exceptions, as required in the case of the appellant who received a sentence of at least four years' imprisonment. Insofar as the judge concluded that the effect of deportation would be unduly harsh, it is not explained how or why it would be unduly harsh for the appellant to be separated from them, even taking out of account questions of whether the 'unduly harsh' test involves a separate public interest balancing exercise.
26. Although the FtJ made findings in terms of where the children's best interests lie, that issue cannot be determinative of the question of whether there are very compelling circumstances over and above those described in paragraphs 399 and 399A, or the Exceptions in s.117C. In this respect I am also satisfied that there is merit in the respondent's grounds.
27. In all the circumstances, I am satisfied that the FtJ erred in law in the respects to which I have referred, and his decision is set aside.
28. At the end of the hearing I announced that I was satisfied that the FtJ had erred in law and that the decision was to be set aside. On the question of whether the decision should be re-made in the Upper Tribunal or whether the matter should be remitted to the FtT, Mr Avery suggested that there was nothing much in the decision of the FtT which could be preserved. On the other hand, he accepted that there was the complicating factor of which conviction and sentence the Secretary of State is relying on in terms of the deportation decision. On that, it was contended that there was no particular reason as to why the respondent could not rely on the sentence of four years' imprisonment in October 2000 as the basis for the deportation decision.
29. It seems to me that the appropriate course is for the matter to be remitted to the FtT, having regard to paragraph 7.2 of the Senior President's Practice Statement. Findings will have to be made in terms of the risk of re-offending and there will need to be a proper analysis of the public interest with reference to the seriousness of the offences committed by the appellant.
30. Furthermore, I was informed by Mr Avery that the appellant had on 6 January 2016 in the Crown Court sitting at Croydon been sentenced to a term of 15 months' imprisonment. Mr Avery said that his information was that this was for an offence of possession with intent to supply cocaine, although the appellant told me that it was in relation to an offence of offering to supply cocaine.
31. In either case, that is a matter that will need to be taken into account in any new decision on appeal. Furthermore, bearing in mind what is said in the FtJ's decision about previous comments from the appellant's wife that she would not support him if he was further convicted of drug-related offences, the question of his family life will need to be re-visited.
32. Accordingly, it is appropriate for the matter to be remitted to the FtT for a de novo hearing before a judge other than FtJ Perry.
33. At that hearing, it is important that the respondent be in a position to explain what is meant at [24] of the decision letter dated 14 October 2014, to the effect that deportation action had been initiated in relation to his latest conviction (presumably 22 June 2012), whereas it is the offence on 13 October 2000 resulting in a sentence of four years' imprisonment that is relied on in terms of the Immigration Rules. This is a matter which the respondent will have to explain, and which the FtT will no doubt want to consider.
Decision
34. The decision of the First-tier Tribunal involved the making of an error on a point of law. Its decision is set aside and the appeal remitted to the First-tier Tribunal for a hearing de novo before a judge other than First-tier Tribunal Judge Perry. No findings of fact are preserved.

Upper Tribunal Judge Kopieczek 29/03/16