Tribunal decisions

The decision

(Immigration and Asylum Chamber)
Upper Tribunal Appeal Number: DA/02043/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 21 October 2016
On 24 October 2016

Before

Upper Tribunal Judge Southern

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

M.F.B.
(ANONYMITY DIRECTION MADE)
Respondent

Representation:
For the Appellant: Mr S. Walker, Senior Home Office Presenting Officer
For the Respondent: Mr D. Ball, counsel instructed by Greater London, solicitors.

DECISION
1. The respondent, who is a citizen of Nigeria, is a foreign criminal for the purposes of s.32 UK Borders Act 2007 as a consequence of his conviction before the Gloucester Crown Court of offences of deception arising from his marriage of convenience to an EEA national, entered into solely for the purpose of dishonestly securing an immigration advantage. He was sentenced to 14 months'imprisonment. That led to the making of a deportation order against him and against his wife and children as his family members, they also being citizens of Nigeria.
2. The Secretary of State for the Home Department has been granted permission to appeal against the decision of First-tier Tribunal Judge Mitchell who, by a determination promulgated on 22 August 2016, allowed the respondent's appeal against that deportation order. In granting permission to appeal First-tier Tribunal Judge Davidge said:
"There is merit in the grounds' assertion that the judge has failed to apply the correct legal framework and conflated the test of reasonableness with that of unduly harsh in the context of the weight to be given to the public interest."
3. As it is transparently clear that the judge has made material errors of law in his approach to the applicable immigration rules and statutory provisions, it is necessary only briefly to identify those errors and to explain why, as a consequence, his decision to allow the appeal cannot stand.
4. It was plain from the outset of the hearing before the judge that the main focus of the respondent's case was upon the best interest of his children and upon the arguments that were said to indicate that those best interests should displace the public interest in the deportation of their father, he being the foreign criminal concerned. Although Mr Ball, who appeared as counsel for the respondent before the First-tier Tribunal as well as before the `Upper Tribunal this morning, had made clear in his skeleton argument and in his oral submissions, as are recorded in the decision of the judge, that the correct test involved an assessment of whether the impact upon the children would be unduly harsh, the judge has set out the earlier version of para 399(a)(ii) which spoke of what would be reasonable rather than unduly harsh.
5. Mr Ball points out that, at para 65 of the decision the judge refers to the decision of the Court of Appeal in MM (Uganda) v SSHD [2016] EWCA Civ 450 and guidance found therein concerning the interpretation of "unduly harsh" but the judge then went on to direct himself in terms of s117B(6) of the Nationality Immigration and Asylum Act, which was not applicable since each was a person liable to deportation because of s.3(5)(b) Immigration Act 1971. At paragraph 74 of his decision the judge said, making clear that he was about to embark upon an application of the wrong legal test:
"I have to consider whether or not it is reasonable to expect the child to live in another country."
He proceeded to direct himself on no fewer than 8 further occasions that it was a test of reasonableness that was to be applied as he completed his assessment of the evidence between paragraphs 75-90. Finally, eliminating any possible doubt that he had fallen into material legal error as to his approach, he said at para 91:
"I therefore consider that the effect of section 117B(6) of the 2002 Act is that the public interest does not require the removal of the appellant?."
6. There is, plainly, a difference of significance between tests of whether something is unreasonable or unduly harsh, as perhaps is inherent in the fact of the amendment of para v399(a)(ii). We simply do not know if the outcome would have been the same had the judge applied the correct legal test. Indeed, he remarked at paragraph 90 that:
"The decision in this case is finely balanced?"
7. For these reasons it is plain that the judge has made material errors of law and that his decision to allow the appeal cannot stand.
8. Mr Walker invited the Upper Tribunal to substitute a fresh decision to dismiss the appeal without any further hearing. That was because the judge had said, at para 87 of his decision about the children:
"They would face great difficulties and hardships on return to Nigeria. It is impossible to say though that the hardships would be unduly harsh?"
As the judge had said earlier that the claims of "the rest of the family" could not succeed, therefore, applying the correct legal test to those findings the only possible outcome, in Mr Walker's submission, is that the appeal must be dismissed.
9. I have concluded that this is not the appropriate disposal in this appeal. The judge has made fundamental errors of interpretation of the immigration rules and applicable statutory provisions and it is not safe to rely upon how he has expressed himself at various parts of his decision. Given the facts concerning the children, and their length of residence in the United Kingdom, there must be no doubt or ambiguity about findings of fact or the assessment of evidence that may have a fundamental impact upon the direction of their lives. Therefore, the decision of the judge will be set aside in its entirety, other than as a record of what was said in evidence at the hearing, and the appeal must be determined afresh by a different judge of the First-tier Tribunal.
Summary of decision:
10. First-tier Tribunal Judge Mitchell made a material error of law error of law and his decision, promulgate don 22 August 2016 shall be set aside.
11. The appeal to the Upper Tribunal is allowed to the extent that the appeal is remitted to the First-tier Tribunal to be determined afresh by a different judge of that Tribunal.

Signed

Upper Tribunal Judge Southern

Date: 21 October 2016