Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/02332/2013

THE IMMIGRATION ACTS

Heard at Nottingham Magistrates' Court
Determination Promulgated
On 26 August 2014
On 5 September 2014

Before

UPPER TRIBUNAL JUDGE DAWSON

Between

Lex Deklerk
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Unrepresented
For the Respondent: Mr McVeety, Home Office Presenting Officer

DETERMINATION AND REASONS
1. Permission to appeal has been granted to this national of Zimbabwe where he was born 13 January 1994. A panel in the First-tier Tribunal comprising First-tier Tribunal Judge Colyer and Mr G H Getlevog (the panel), for reasons given in their determination dated 12 May 2014, dismissed his appeal against the decision that s.32(5) of the UK Borders Act 2007 applied and so resulting in a deportation order dated 4 November 2013.
2. The grounds of challenge are confined to the single question which was whether the appellant has ties to Zimbabwe within the meaning of paragraph 399A. It is argued that the panel materially erred by applying the wrong legal test in applying a narrow interpretation of "ties" which had been rejected by the Tribunal in Ogundimu (Article 8 - new rules) Nigeria [2013] UKUT 00060 (IAC). It is argued that the panel materially erred in failing to apply this decision and had given insufficient reasons to differentiate Maslov where it was argued the case involved a more severe offending history.
3. The appellant was unrepresented. He explained that his mother had spoken to the lawyers who had indicated that they were unable to obtain legal aid funding. His mother, who has moved to Ireland to be with a partner for work purposes, had been unable to raise funding for the appellant's representation. Having regard to the nature of the challenge, I considered that I could justly proceed to determine whether the First-tier Tribunal had erred in law in the absence of representation for the appellant. I explained to him in detail the purpose of the hearing and thereafter heard submissions from Mr McVeety. I also invited comments from the appellant and I was satisfied understood the process. He was unable to add anything new of a material nature to that which had been stated already before the First-tier Tribunal and raised in the grounds of application. I reserved my decision.
4. The facts are these. The appellant arrived in the United Kingdom on 22 December 1999 when he was nearly 6 years old as a dependant on his mother's passport who on 20 March 2007 was accepted as a British citizen by descent. The appellant was granted indefinite leave to remain on 30 April 2003.
5. The chronology of his criminal offending is as follows. On 16 September 2007 he was cautioned for shoplifting. On 22 April 2010 he was sentenced to a twelve month detention and training order for burglary and theft of a dwelling. He was warned by the respondent that if he committed any further offences the question of his deportation would be reconsidered. On that occasion no deportation action was taken. On 3 August 2012 he was convicted of burglary and sentenced to three years' imprisonment. It is this offences which gave rise to the decision under s.32(5).
6. The unchallenged findings of the panel in respect of the appellant's connections to Zimbabwe are as follows:
(i) The appellant's father still lives in Zimbabwe. The appellant has only had limited contact with him since he left Zimbabwe but that contact has continued and the panel saw no reason why it could not be revived.
(ii) On the occasion of the only visit the appellant has made to Zimbabwe in 2004 with his mother, they visited his father.
(iii) The appellant's father contacted him on New Year's Eve 2010 which indicated that he did take some interest in his son and that he is someone whom he may contact in order to seek support or assistance on his return.
(iv) The appellant also has a maternal aunt in Zimbabwe and four adult cousins. On the occasion of his visit he stayed at the aunt's house. The appellant's grandparents who are in the United Kingdom may be of assistance in providing him with contact numbers and addresses of that aunt and the four adult cousins who may be able to assist him.
(v) There are no grounds to suggest that the appellant is estranged from the culture of Zimbabwe to the extent that reintegration into family or private life in that country would amount to undue hardship.
(vi) Any employment or education courses undertaken in the United Kingdom could be utilised to assist his integration, to enable him to gain employment and live an independent and sustainable life.
(vii) There was no evidence that the appellant's health is such that he would be unable to work to support himself. It would not be easy for the appellant to establish life in Zimbabwe and it would no doubt involve a degree of hardship and discomfort but it had not been shown that it would be unduly harsh to return him.
(viii) The appellant had provided no independent evidence to demonstrate that he would be destitute or that he would be unable to find gainful employment. He had proved his abilities in passing examinations at school and college and in addition he had undertaken courses whilst in detention that may assist his employment skills in Zimbabwe. As a resourceful adult he would be able to re-establish himself in Zimbabwe.
7. I pause to note that the appellant explained to me that his father had made contact after the appellant had written to him. He had asked his son how he was. His aunt had plans to leave Zimbabwe for the United Kingdom but as yet had not done so. The appellant's cousins had left. It is not clear whether this evidence was before the panel.
8. After setting out the oral evidence, the panel directed itself as to the legislative framework including pertinent to the challenge paragraph 399A which is in these terms:
"399A. This paragraph applies where paragraph 398(b) or (c) applies if -
?
(b) the person is aged under 25 years, he has spent at least half of his life living continuously in the UK immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK."
9. The panel's direction included reference to the Convention on Human Rights, the legislative background to the automatic deportation order and part 13 of the Immigration Rules in force at the time of decision. Under the heading "Our Findings" the panel addressed the appellant's background, his criminal offending including a reference to the sentencing remarks of His Honour Judge Tremberg, the risks of further offending, the appellant's links to Zimbabwe, the panel's finding under Articles 2 and 3 and finally the ability of the appellant to support himself.
10. The panel then proceeded to consider the case under the heading: "Applying the amended Immigration Rules". Specifically it concluded that the appellant did not have any family life with a spouse or partner and so could not benefit from paragraph 399(a) or paragraph 399(b) and then turned to paragraph 399A and set out the text of the reasons letter accompanying the decision in which it was accepted that the appellant had lived continuously more than half his life in the UK. The next step under the same heading was to consider Maslov and the representations that had been made.
11. There followed further consideration under the headings "Third Parties and Article 8" with reference to the impact on family members and then "Applying Article 8". In the course of directing itself the panel referred to Ogundimu, not in the context of its conclusions on "ties" but as to the serious reasons required to justify expulsion of a settled migrant who has spent lawfully all or the major part of his or her childhood in this country. The rest of the determination is taken up with the completion of that exercise with a concluding observation on the liability of the appellant to deportation under s.32 of the 2007 Act.
12. In essence Mr McVeety argued that the determination was odd in the way it had been set out but when read as an entirety, there had been adequate consideration of the appellant's links to Zimbabwe. He described the determination as having all the right notes but in the wrong place.
13. My conclusions are as follows. Mr McVeety is right. There was a muddling by the panel between the issues that they were required to address under the Immigration Rules and any freestanding Article 8 exercise. The question I must ask myself is whether, notwithstanding this, the panel in substance asked itself the correct question under paragraph 399A which, if answered in the negative, would have been determinative of the appeal under the Immigration Rules.
14. The panel quoted the relevant rule. It set out the respondent's case under that Rule. The extent of its finding is indicated by the text at [53] as follows:
"53. The respondent has appropriately given consideration under paragraph 399A of the Immigration Rules which defines the criteria which must be satisfied before an individual's private life outweighs the public interest in deportation in line with Article 8 of the ECHR. That paragraph requires that each of the criteria contained within it is satisfied. ?"
15. It is evident to me that the panel agreed with the respondent's conclusions that the appellant had ties to Zimbabwe. If this was the extent of their reasoning it would be problematic but in the context of its detailed findings at [39] to [42] and [44] and [45] regarding the extent of the connections and the ability of the appellant to establish himself there, I am persuaded that the panel's conclusion is adequately reasoned in the proper context.
16. It is correct that Ogundimu was not referred to in the analysis of paragraph 399A but I do not consider this fatal to the determination. As observed by Judge O'Connor at [125]:
"Whilst each case turns on its own facts, circumstances relevant to the assessment of whether a person has ties to the country to which they would have to go if they were required to leave the United Kingdom must include, but are not limited to: the length of time a person has spent in the country to which he would have to go if he were required to leave the United Kingdom, the age that the person left that country, the exposure that person has had to the cultural norms of that country, whether that person speaks the language of the country, the extent of the family and friends that person has in the country to which he is being deported or removed and the quality of the relationships that person has with those friends and family members."
17. These observations followed an analysis of what was meant by "ties" at [123]:
"The natural and ordinary meaning of the word 'ties' imports, we think, a concept involving something more than merely remote and abstract links to the country of proposed deportation or removal. It involves there being a continued connection to life in that country; something that ties a claimant to his or her country of origin. If this were not the case then it would appear that a person's nationality of the country of proposed deportation could of itself lead to a failure to meet the requirements of the Rule. This would render the application of the Rule, given the context within which it operates, entirely meaningless."
18. Having regard to the findings by the panel on the appellant's ties to Zimbabwe, I am satisfied that in substance it conducted that exercise with the correct enquiry in mind and reached conclusions open to it on the evidence. The grounds in reality are therefore no more than a disagreement with those findings. It cannot be said that the panel applied the wrong test. Despite my misgivings about the format of the determination, when read as a whole, I am satisfied that the panel carried out the task it was required to when considering the appellants' ties to Zimbabwe. The challenge is confined to this single aspect on which I am persuaded the panel did not materially err.
19. Accordingly the appeal by the appellant in the Upper Tribunal is dismissed and the decision of the panel of the First-tier Tribunal stands.

Signed Date 4 September 2014

Upper Tribunal Judge Dawson