Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/00064/2015

THE IMMIGRATION ACTS

Heard at North Shields
Decision & Reasons Promulgated
On 17 October 2016
On 24 October 2016

Before

UPPER TRIBUNAL JUDGE RINTOUL

Between

I I
(ANONYMITY ORDER MADE)
Appellant
and

secretary of state for the home department
Claimants

Representation:
For the Appellant: Ms Soltani, Solicitor, Iris Law Firm
For the Respondent: Mr Diwnycz, Presenting Officer

DECISION ON ERROR OF LAW AND REASONS
1. The appellant appeals with permission against the decision of First-tier Tribunal Judge Fisher, promulgated on 29 September, dismissing her appeal against the decision of the respondent made on 17 February 2015 to refuse her human rights claim and to refuse to revoke a deportation order made against her.
2. The appellant is a citizen of Nigeria who has lived in the United Kingdom since 2006, initially claiming asylum. She has three children all born here who are Nigerian nationals. The oldest was born in 2007, 2008 and 2011. The middle child has a serious but very rare medical condition, familial hyperphosphatemia tumoral calcinosis.
3. On 14 November 2006, the appellant was convicted upon her own confession of possession of a false British passport and was sentenced to 9 months' imprisonment. The sentencing judge also recommended her deportation. The deportation order was singed on 29 January 2008, after her unsuccessful appeal against a decision to refuse her asylum claim.
4. There then followed submissions and representations made to the respondent who ultimately treated them as a fresh claim but refused them for the reasons set out in her letter of 17 February 2015.
5. The letter proceeds on that basis [44] that the appellant had been convicted of an offence which has causes serious harm and that accordingly paragraph 398 of the Immigration Rules applied. The respondent concluded that the appellant did not meet the requirements of paragraphs 399 (a) or 399A of the Immigration Rules and that her deportation was in the public interest, notwithstanding the position of her children.
6. The judge found:
(a) That the removal of the middle child would not engage article 3 [32];
(b) That paragraph 398 had been met
(c) That, following MAB (para 399; "unduly harsh") USA [2015] UKUT 00435, it would not be unduly harsh to expect the children to relocate to Nigeria;
(d) That neither section 117C (4) or (5) applied to this case;
(e) The interests of the appellant and her children did not amount to very compelling circumstances;
7. The appellant sought permission to appeal on the grounds that the judge erred:
(a) In failing to consider the risk to the children and her ability to care for them flowing from the appellant's mental ill-health [9];
(b) In failing to consider the effect of removal from the current environment on the children [10];
(c) In failing to consider medical issues in the context of the effect of removal on the children, and the mother's likely inability to be able to care for the children given her mental health [14], there being no evidence that there would be family support;
(d) That a previous appeal by the appellant had been heard and dismissed by the same judge;
8. On 18 March 2016, First-tier Tribunal Judge Landes granted permission on all grounds, save for those raising article 3 of the Human Rights Convention.
9. I heard submissions from both parties, Mr Diwnycz seeking to rely only on the rule 24 letter.
10. I consider that the judge did err in his assessment of the appellant's mental health. At [24], it is considered in the context of articles 3 and 8, and also at [26], but not in the context of her ability to cope if returning to Nigeria having to care for a young child with a serious and debilitating illness. It is not clear either why at [36] the judge found he was not satisfied there would be no family support in Nigeria, given what the children had said to professionals. This is, I consider, a material error, in that he failed to take into account a material matter, and on that basis alone, I am satisfied that the decision involved the making of an error of law.
11. In addition, with regard to the middle child, the judge appears from [34] not to have considered whether her removal would be unduly harsh within the context of the Immigration Rules, given the provisions of the Immigration Rules requiring her to have been resident here for 7 years before the date of decision. Yet section 117C of the 2002 Act which does not restrict the definition of qualifying child in section 117D to those who had resided 7 years before the date of application. He considered undue harshness only within the context of "very compelling circumstances" which involves a greater weight to be attached to the public interest. That must be viewed in the light of NA (Pakistan) v SSHD [2016] EWCA Civ 662 at [31]- [37] in particular.
12. Further, in considering whether the appellant is a foreign criminal as defined in section 117D; the refusal letter is in error in that it makes reference to the earlier version of paragraph 398. The relevant version refers only to foreign criminal as defined in section 117D. The judge, too, appears to have followed the rules, given his formulation of the test at [33]; there appears to have been no proper consideration of the issue beyond what the respondent thought, and the fact that the judge considered the crime serious does not equate to a finding that the offence had cause serious harm.
13. In conclusion, the judge's determination involved the making of an error of law which make the findings as to family life unsafe and unsustainable. It therefore follows that it must be set aside.
14. Given the lapse of time, I consider that the matter must be remitted to the First-tier Tribunal for a fresh hearing on all issues.
SUMMARY OF CONCLUSIONS
1. The decision of the First-tier Tribunal involved the making of an error of law, and I set it aside.
2. I remit the appeal to the First-tier Tribunal for a fresh hearing on all issues. The hearing must not be before First-tier Tribunal Judge Fisher

Signed Date: 17 October 2016

Upper Tribunal Judge Rintoul