Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/00083/2015

THE IMMIGRATION ACTS

Heard at Birmingham Employment Centre
Decision & Reasons Promulgated
On 13th October 2016
On 24th January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

Sajid [I]
(ANONYMITY DIRECTION not made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Miss E Rutherford (Counsel)
For the Respondent: Mr D Mills (HOPO)

DECISION AND REASONS

1. The Appellant is a male, a citizen of Pakistan, who was born on 20th October 1973. He appealed to the First-tier Tribunal against the decision of the Respondent, taken on 22nd April 2015 to deport the Appellant to Pakistan following his conviction in 2002 on two counts of possession with intent to supply (heroin) and of dangerous driving. In the refusal letter, the Respondent stated as follows:
"You are 41 years old and after deducting your time in prison, it is found that you have been in the UK with legal leave for half your life. However, it is considered that you have lived in Pakistan throughout your youth and formative years and are considered to have maintained your cultural connection to Pakistan through your family members with whom you share a cultural background while in the UK. Although you have been in UK since you were 16 years old it is considered that your serious criminality is evidence of your failure to assimilate into the society of the UK. There is no evidence of you being able to independently support yourself in the UK without recourse to public funds. It is found for the reasons given above that there are no insurmountable obstacles raised to your integration into the country to which you are a national and to which you are to be returned, Pakistan." (Paragraph 43).
2. The Appellant's appeal came before First-tier Tribunal Judge Ford at Birmingham on 2nd October 2015. In the determination promulgated on 16th October 2015, Judge Ford concluded that:
"I accept that the Appellant has been in the UK for a considerable length of time. But when considering the public interest I must take into account the Appellant's deportation is in the public interest. The Appellant can speak English. This is a neutral factor in the balancing exercise. The Appellant has established her private life in the UK and does have a relationship with qualifying children. But there is no requirement that his children leave the UK. I do not accept that the Appellant has been lawfully resident in the UK for most of his life as I cannot take into account the period post conviction and the period of time he spent in the UK prior to conviction did not exceed the period of time he had spent living in Pakistan before that." (Paragraph 35).
3. Judge Ford also went on to state that, "I have no doubt but that the Appellant's family will keep a close eye on him if he is returned to Pakistan and will endeavour to provide him with such support networks as they can organise from the UK" (paragraph 138).
4. The judge did not overlook the fact that whilst,
"Life will be hard for the Appellant in Pakistan and he will suffer from the separation from his family and his settled way of life in the UK, I am satisfied that this decision is a proportionate one and involves a proper balancing between the competing public interest and the Appellant's private life interests" (paragraph 141).
5. The judge also had due regard to the impact of the Appellant's removal upon his children and concluded that "the decision is not unduly harsh for the children" (143) and not least because, "the Appellant has not established that his deportation is unduly harsh for the children" (paragraph 143).
6. In fact, the judge ended the determination with the observation that,
"The Appellant would be able to continue his relationship with his children and they with him and the only difference will be that he would not see them face to face as often as they would wish. They would have the easy facility they have now of ringing him up and asking to see him, stay with him or for him to give them a lift. Of course it would be ideal if this easy relationship could continue. But I am satisfied that the decision is proportionate and involves a proper balancing of the competing public interest in the Appellant's deportation ...." (Paragraph 144).
7. The appeal was dismissed.
8. On 14th April 2016, a permission to appeal was granted broadly on two grounds. First, that having regard to the Appellant's sentence of five years' imprisonment with a further two years' imprisonment, with a total of seven years' imprisonment, there was an arguable error of law in the judge's assessment concerning Article 8, having regard to paragraph 399 of the Immigration Rules, rather than paragraphs A398 and 398 of the Rules. Second, there is an absence of regard to Section 117A to D of the NIAA 2002, and more especially an absence of regard to Section 117C, and arguably an inadequacy of reasoning concerning the "very compelling circumstances" test.
9. A Rule 24 response dated 20th April 2016 provided a robust rebuttal to this in the following terms. First, that the Appellant had been sentenced to a total of seven years' imprisonment for very serious crimes and he was in the most serious offender category for the purposes of the Immigration Rules. Second, the judge gave a very detailed and comprehensive determination and considered all of the evidence arrived at with the conclusions which were open to her. Third, the grant of permission by the First-tier Tribunal on the basis that the judge erred by considering paragraph 399 rather than A398 and 398 of the Rules was misconceived because paragraph 398 states that it will only be in exceptional circumstances that the public interest in deportation would be outweighed when paragraphs 399 and 399A do not apply. The judge considered as the starting point whether 399 and 399A applied and after careful analysis concluded, as was open to her, that even the terms of the lower test cannot be satisfied. It necessary followed, therefore, that if 399 and 399A cannot be satisfied, the higher threshold of 398 will also not be reached. Finally, as far as permission had been granted because Section 117C had apparently not been considered, this issue had not been raised in the Grounds of Appeal, and the practise of granting permission on grounds which have not been advanced, was disapproved by the presidential panel recently in Barry (conduct of hearing) [2015] UKUT 541. In any event, there was nothing in Section 117C, which was not in the Rules, and it is submitted that the judge had fully considered the terms of Section 117C in the determination.
10. At the hearing before me on 13th October 2016, Miss Rutherford, appearing on behalf of the Appellant, repeated the Grounds of Appeal. She submitted that there had been a failure to consider paragraph 399 and it was irrelevant that the Appellant had spent seven years in prison. Miss Rutherford also wisely submitted that she would have to accept that the Appellant had exaggerated the relationship between himself and the children, but that was not to say that they had no contact whatsoever, and at paragraph 89 the judge had accepted there were strong links with the children. However, Miss Rutherford submitted that her best point was the medical evidence and the Appellant's medical condition.
11. This had been expressly recognised by the judge when she observed that, "the Appellant's health difficulties are significant but not very compelling" (paragraph 132), and this was:
"To do with his having psychotic episodes and the risks that it posed to his own safety and to the safety of others, given that he was sectioned in the spring of 2014 and had to be tranquilised because he was threatening to throw boiling water over a nurse" (paragraph 130).
The judge had also noted that the Appellant had "been diagnosed with paranoid schizophrenia and has suffered from severe psychotic episodes in 2006 and again in 2014" (paragraph 105). The judge had failed to show how the Appellant would be able to look after himself and support himself in Pakistan.
12. For his part, Mr Mills submitted that this appeal amounted to nothing more than a disagreement with the decision. What we had before this Tribunal was an exceptionally detailed determination, and indeed the judge had gone over the medical evidence, not once, but twice. It cannot be said that she had ignored anything at all. She was aware of the medical evidence but had dealt with this at paragraph 138 with the observation that, "I have no doubt that the Appellant's family will keep a close eye on him if he is returned to Pakistan and will endeavour to provide him with such support networks as they can organise from the UK". The judge had even said that, "provided the Appellant remains medication compliant, he will, I am satisfied not suffer from the serious prejudice that those with uncontrolled mental health problems face in Pakistan" (paragraph 138). This was a very careful and considered analysis of the situation. The test, submitted Mr Mills, was that of "very compelling circumstances" and this was over and above what was set out at paragraphs 398 and 399A, so that even if there was a serious condition here, the Appellant could only succeed if he could point to "very compelling circumstances" and the judge had rightly decided that there were no such circumstances.
13. Indeed, Mr Mills went on to say that the judge had had regard to the established case law referring to MAB [2015] UKUT 00435 and to the "conflicting decision" in KMO (Nigeria) [2015] UKUT 00543. Mr Mills submitted that the judge had observed that, "given the actual reading of the Rules which speak of the decision being unduly harsh for the child I agree with the conclusion that the focus is primarily upon the effects upon the children of remaining in the UK without the Appellant" and that, "I agree that the 'unduly harsh' test is not based upon the balancing exercise" but that, "rather it is focused upon the severity of the impact on the children" (paragraph 123). Mr Mills pointed out that the judge had actually in so saying preferred to follow the case of MAB, but the Court of Appeal had since ruled that the proper test was in KMO, which the judge had referred to as the "conflicting decision", and the reality was that the judge had actually applied the more generous test, than the test that had been set out in KMO, and approved by the Court of Appeal, so that it was plain that if the proper test had been applied, the Appellant could not have succeeded at all.
14. Finally, as far as Section 117C was concerned, this had not been raised in the Grounds of Appeal, and in any event the test here was no different to what appeared in the Immigration Rules under the paragraphs that had specifically been considered by the judge.
15. In reply, Miss Rutherford submitted that the judge had made the following observation: "he will face financially difficulty without the access to disability benefits and income support that he has had in the UK. But I am satisfied that his brother and nephew will continue to provide him with such financial support as they can afford".
No Error of Law
16. I am satisfied that the making of the decision by the judge did not involve the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision. My reasons are as follows.
17. First, there is no doubt that the judge has, in a clear and comprehensive determination, left no stone unturned in the consideration of the salient facts of this case, and this is accepted even by Miss Rutherford who appeared before me today.
18. Second, the issue, therefore, is the way in which the public interest balance has been struck as against the Appellant's Article 8 rights, and the application of the Immigration Rules at paragraphs 398A and 398. The application, however, is misconceived. The question here was whether the Appellant, as a proposed deportee, has a genuine and subsisting parental relationship with a qualifying child and the effect of the deportation on the child would be "unduly harsh", and the judge held, "quite independent of the seriousness of his offence", that, "I found the decision is not unduly harsh for the children" (paragraph 143), which related back to the finding (at paragraph 128) that, "the Appellant relies on exceptional circumstances. I do not accept that the delay is an exceptional circumstance".
19. It is important to recognise that the judge had clearly ruled that it was unnecessary for the Appellant's children to accompany him to Pakistan, and that the relationship would not be adversely affected between father and children, with the Appellant not being able to remain in the UK himself, but having to relocate to Pakistan. This is clear from the observation that, "the Appellant would be able to continue his relationship with his children and they with him and the only difference would be that he would not see them face to face as often as they would wish. They would not have the easy facility they are now offering him up and ask him to see him, stay with him or for him to give them a lift" (144).
20. Miss Rutherford, in fact, openly accepted in her wise submissions before this Tribunal that the relationship between the Appellant and his children had been overstated, although that was not to say that it was nonexistent. Paragraph 398 requires there to be "exceptional circumstances" and the Appellant was unable to point to such exceptional circumstances. The judge did take as her stating point whether paragraph 399 and 399A applied and concluded that even on the terms of the lower test the Appellant could not succeed.
21. If paragraphs 399 and 399A could not be satisfied then the higher threshold at paragraph 398, referring to the requirement of "unduly harsh" could also not be satisfied. The judge had already concluded that if all that the Appellant could point to was effectively a situation whereby his removal to Pakistan would place him in an uncomfortable, inconvenient, undesirable, unwelcome, or mere difficulty which was challenging in his consequences for him, was not enough.
22. As for the application of Section 117C, this had not been raised in the grounds, but in any event the case of KMO [2015] UKUT 543 makes it clear that inevitably, in the consideration of paragraph 399, regard will be had to the consequences of the provisions of Section 117C (notwithstanding the fact as already indicated that Section 117C had not been raised by the Appellant). The judge did consider the terms of Section 117C.
Notice of Decision
23. There is no material error of law in the original judge's decision. The determination shall stand.
24. No anonymity order is made.

Signed Date

Deputy Upper Tribunal Judge Juss 23rd January 2017