Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/00014/2015

THE IMMIGRATION ACTS

Heard at: Field House
Decision Promulgated
On: 30th August 2016
On: 20th January 2017

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

The Secretary of State for the Home Department
Appellant
And

GM
(anonymity direction made)
Respondent

For the Appellant: Ms C Isherwood, Senior Home Office Presenting Officer
For the Respondent: -

DETERMINATION AND REASONS
1. The Respondent is a national of the Democratic Republic of Congo (DRC) born in 1985. On the 16th September 2015 the First-tier Tribunal allowed his appeal against a decision to deport him from the United Kingdom. The Secretary of State for the Home Department now has permission to appeal that decision1.

Anonymity Order
2. The Respondent is a foreign criminal and as such would not ordinarily benefit from an order protecting his identity. This case does however turn in part on his relationship with his minor son who lives in the United Kingdom. Identification of the Respondent could lead to identification of this child and for that reason, and for the purpose of this decision, I make an order for anonymity in the following terms:
"Unless and until a tribunal or court directs otherwise, the Respondent is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies to, amongst others, both the Appellant and the Respondent. Failure to comply with this direction could lead to contempt of court proceedings"

The Hearing
3. This matter first came before me on the 30th August 2016. The Respondent did not attend the hearing. The Tribunal clerk made efforts to contact the Respondent, and the representatives who were last on record, Perry Clements Solicitors. She managed to speak with someone from the solicitors, who told her that they were not aware of the hearing. They were moving offices and were having problems having their post re-directed. The woman on the phone assured the Tribunal clerk that she would try and get hold of the Respondent. When she was contacted again she said that she had spoken to the Respondent's father-in-law who had said that he could not be contacted and that he may be at work. In a subsequent call it was said that the Respondent was actually in A&E and that he had not known about the hearing. Ms Isherwood noted that there was also a bail renewal listed, and that on the information she had been given the Respondent had been complying with his 'signing on' conditions at Becket House. Given his apparent compliance with his bail conditions, I accepted that the Respondent's non-attendance was not intentional. I adjourned the proceedings.
4. Fresh notices of hearing were sent out. At the resumed hearing on the 3rd October 2016 there was still no attendance by the Respondent. The Tribunal received an email from a Mrs VR, who had previously stood as surety. I believe she is the maternal grandmother of the Respondent's son. VR explained that she had already requested that she be removed from the record as a surety. She requested that the Tribunal stop sending her mail and said that she would not be attending the hearing. The Tribunal clerk contacted VR from the court room. VR informed the Tribunal that although she had received the notice of hearing she did not know if the Respondent knew about it and she was unable to say what his current address was.
5. Having considered all of the circumstances I decided not to adjourn the matter again. The notice of hearing had been sent out the last addresses we had on file. If VR knew about the hearing it seemed reasonably likely that the Respondent would know about it too. I heard oral submissions from Ms Isherwood about whether or not the decision of the First-tier Tribunal contained a material error of law, and I reserved my decision.
6. Following that hearing an item of correspondence, received in Field House on the 7th September 2016 but regrettably not attached to the file, was brought to my attention. This was a letter from Perry Clements Solicitors, from their office in Rex House, Ballards Lane, North Finchley, London N12 0DD. The letter reads that they continue to represent the Respondent, and gives his address in Enfield. The notice of hearing for the 3rd October 2016, sent out on the 8th September 2016, was not sent to either of these addresses. In light of this information, I did not consider it appropriate to proceed to determine the Secretary of State's appeal until I could be confident that the Respondent and his representatives had had an opportunity to make their case. With apologies to both parties for the inconvenience that this administrative error has caused I sent out directions to the solicitors and Respondent at the addresses given and invited submissions as to whether the hearing should be reconvened.
7. I received no response from the Respondent. On the 9th November 2016 Field House received a letter from Perry Clements Solicitors which indicated that they were without instructions, having lost contact with their client.
8. Given the history of these proceedings and the strenuous attempts made to communicate with the Respondent, I am satisfied that any further adjournment would not result in his participation. I proceed to consider the Secretary of State's appeal on the documents before me, taking into account the oral submissions made by Ms Isherwood on the 3rd October 2016.

Background and Matters in Issue
9. The Respondent came to the United Kingdom in 1995 with his parents when he was nine or ten years old. The family were refused asylum but were granted Exceptional Leave to Remain, and in 2007 the Respondent was granted Indefinite Leave.
10. The Secretary of State for the Home Department took this action to deport following the Respondent's conviction, on the 9th June 2009, of making false representations in order to make gain. The Respondent had been employed by B&Q at the time and had used the fuel card he had been given to purchase diesel in cans and illegally sell them on. Notwithstanding this breach of his employer's trust the Respondent was given a suspended prison sentence and a community service order. It was his failure to comply with the terms of the latter which brought him back to Wood Green Crown Court on the 15th October 2014. The Court activated the suspended sentence and the Respondent was sent to prison for 12 months. This was the offence which led to the action, but it was not the only conviction. GM had, as the Notice of Decision to deport has it, 17 previous convictions.
11. Before the First-tier Tribunal the Respondent argued that he fell within two of the 'exceptions' to the automatic deportation provisions in Part 13 of the Immigration Rules. First, he submitted with reference to paragraph 399 that it would be unduly harsh for his British son if he were to be deported. Second, he pointed to his lack of ties to the DRC and his long UK residence to submit that his appeal should be allowed with reference to paragraph 399A. The Tribunal agreed and allowed his appeal under both heads.
12. The Secretary of State now appeals on the following grounds:
i) The First-tier Tribunal failed to give reasons as to why it would be "unduly harsh" for the Respondent's son to live without him.
The written grounds refer to MAB (para 399 'unduly harsh') USA [2015] UKUT 00435 (IAC) and allege that although this case is cited by the First-tier Tribunal, it has in fact failed to apply the guidance therein. In essence it is pleaded that the Tribunal failed to give reasons as to why it would be "inordinately bleak" for child to be separated from father.
Before me Ms Isherwood was given leave to amend this ground, and to place reliance on MM (Uganda) [2016] EWCA Civ 450, the case in which the Court of Appeal preferred the approach taken in KMO (section 117 - unduly harsh) [2015] UKUT 000543 (IAC) to that in MAB. The effect of this new authority was that in weighing whether separation is unduly harsh, decision-makers are bound to factor in matters beyond the child's control, such as the seriousness of the offending behaviour of the parent.
ii) Failing to give adequate reasons/weight in respect of the public interest.
The Secretary of State submits that in addressing the public interest the Tribunal fails to give adequate weight to the fact that this was GM's 18th conviction and there was therefore a powerful public interest in his removal. The First-tier Tribunal is alleged to have failed to identify and explain the public revulsion in this case, deterrence to others and the need to build and maintain public confidence in cases such as these. This submission covers both limbs of GM's case. In respect of whether there are "very significant obstacles" to his reintegration in the DRC the Secretary of State submits that his inability to speak Lingala is not sufficient reason to find this test met.
iii) Failure to consider the factors set out at section 117A-D of the Nationality, Immigration and Asylum Act 2002 (as amended by s19 of the Immigration Act 2014).
Although it is recognised that the Tribunal mentions the relevant sections, it is submitted that it failed to deal with them substantively in the body of its reasoning.

My Findings
Paragraph 399(a)
13. Whilst I am satisfied that the Tribunal gave sound reasons for its findings, it is now clear that it did so following legal misdirection. At paragraphs 28-30 the Tribunal evaluates the question of whether it would be "unduly harsh" in the context of the guidance given in MAB. That approach required the Tribunal to consider only the impact upon the child. The Court of Appeal has now given clear indication that it was wrong to do so. The proper approach was that advocated in KMO. The Tribunal is required to consider all factors, balancing the public interest in removal against any adverse impact on the child. It follows that the findings on that matter must be set aside.
Paragraph 399A
14. The appeal was allowed in the alternative with reference to paragraph 399A of the Rules. This provides that a person sentenced to 12 months in prison (and so falling within paragraph 398(b)) can avoid deportation if he can show that the following three factors are established:
(a) the person has been lawfully resident in the UK for most of his life; and
(b) he is socially and culturally integrated in the UK; and
(c) there would be very significant obstacles to his integration into the country to which it is proposed he is deported.
15. At paragraphs 31-32 the Tribunal makes clear findings of fact that the Respondent can do just that. He left the DRC when he was three years old and cannot speak Lingala. His family are all British citizens living in the UK. He had at the date of the appeal been in the United Kingdom some 20 years, approximating two thirds of his life. He speaks fluent English and is socially and culturally integrated in the United Kingdom, having finished his education here, having been in employment for over ten years and having had a long term relationship with a British woman. He is father to a British child. The Tribunal was satisfied that he would be returning to the DRC after an absence of 27 years, with no support, accommodation or employment. Taking all those factors into account the Tribunal was satisfied that the exception at 339A was engaged.
16. The Secretary of State takes no issue with the findings in respect of 399A (a) and (b). Her complaint as to (c) is framed as follows:
"it is further submitted the FTJ erred, at para 32, when they considered there would be 'very significant obstacles' if the Appellant was returned to the DRC, because he is unfamiliar with the language. That is not a circumstance that outweighs the public interest in deportation and the Appellant would have some knowledge of the DRC through his parents"
17. It seems to me that the Secretary of State seeks, in the short paragraph, to raise three discrete points.
18. First it is suggested that the appeal was allowed because the Respondent does not speak Lingala. I cannot accept that the reasoning is limited to that. As I summarise above, the Tribunal had regard to a number of factors, most pertinently the fact that the Respondent has not been to that country since he was three years old. That he knows no-one there, has no familiarity with the country and without contacts or language skills would have considerable difficulty in finding employment and thereby accommodation were plainly matters that the Tribunal was entitled to take into account.
19. Second it is suggested that an inability to speak Lingala is not a matter which outweighs the public interest. As I note above this was not the sum total of the reasoning. I do note however that there is no authority to the effect that the public interest plays any part in determining, as a matter of fact, whether there are 'very significant obstacles' to integration. Either there are such obstacles, or there are not.
20. Thirdly the Secretary of State submits that the Respondent would have some knowledge of the DRC "through his parents". Although it is not clearly articulated, presumably the Secretary of State intends to submit that this was a factor not given due weight by the Tribunal. It is true that it does not explicitly feature at paragraphs 31-32. I am not however satisfied that it is a factor that would have made any material difference to the Tribunal's reasoning. It may well be the case that his parents have imparted to him some understanding of Congolese culture (if not an ability to speak Lingala) but since they themselves left that country almost 3 decades ago it is difficult to see what "knowledge" they could give their son that would equip him to overcome the obstacles identified by the Tribunal.

Conclusion
21. Although I have found ground (1) to be made out, I am not satisfied that there is any material error of law in this determination in respect of paragraph 399A. It follows that the error identified is not such that the decision must be set aside.

Decisions
22. The First-tier Tribunal decision does not contain an error of law such that it must be set aside.
23. There is a direction for anonymity.

Upper Tribunal Judge Bruce
18th January 2017