Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/00128/2015

THE IMMIGRATION ACTS

Heard at Hill Street, Birmingham
Decision & promulgated on:
On 16 March 2017
On 23 March 2017

Before

The President, The Hon. Mr Justice McCloskey and
Deputy Upper Tribunal Judge Mahmood

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

ARSALN HAJIZADEH
Respondent

Representation
Appellant: Ms Aboni, Senior Home Office Presenting Officer
Respondent: Ms Elliott-Kelly, of counsel, instructed by Paragon Law

DECISION

1. For the reasons given in our ex tempore judgment pronounced at the conclusion of the hearing, we dismissed this appeal. We summarize our reasons as follows.

2. We begin by referring to the grant of permission to appeal:

(i) Permission to appeal was refused on the ground that the First-tier Tribunal (the “FtT”) had failed to take into account the offending of the original Appellant (whom we shall describe as “the Appellant” for convenience) in applying the test of “unduly harsh”: see [56] – [57] of the decision of the FtT.

(ii) The permission Judge suggested that the FtT had (arguably) fallen into error on the basis of an assessment that the separation of the Appellant from his children would cause them (mere) “upset and distress”. This terminology appears nowhere in the decision of the FtT or the supporting evidence, in particular the report of the expert.

(iii) Permission was granted on the basis that “… it is arguable that [the FtT] was not rationally entitled to allow the appeal …..”.

[Our emphasis]

3. This latter passage in the grant of permission to appeal is of considerable significance as it identifies clearly the arguable error of law in play. The contours of the principle of Wednesbury irrationality were detailed in the decision of this Tribunal in Greenwood (No 2) [2015] UKUT 629 (IAC), at [17]:

“The second question which arises is whether the Judge committed any error of law in his application of the correct legal test. We find no such error. In the context of the present appeal there is no suggestion that the Judge left out of account any material evidence. Nor can it be suggested that the Judge allowed anything extraneous to enter the equation. The touchstone for intervention is irrationality. This Tribunal can find an error of law in the context of this appeal only if the outcome of the application of the correct legal test is vitiated by irrationality. This is a self-evidently elevated threshold, one which is rarely satisfied in practice and which, interestingly, does not feature expressly in many of the recent Court of Appeal decisions belonging to this sphere. The test for irrationality has been formulated in a variety of tried and trusted ways. Was it reasonably open to the Judge taking into account all material factors and disregarding everything extraneous to reach the conclusion under challenge? Another formulation is: did his conclusion fall within the band, or range, of conclusions reasonably open and available to him? There is also the repeated admonition to appellate courts and tribunals that what they might have done as a first instance court or tribunal is not in point. Thus while it may be that not every first instance immigration judge would have reached the conclusion under challenge in this appeal this does not vitiate in law the decision.”

4. At this juncture we reproduce the tests required by the Immigration Rules to be applied. They are contained in paragraph 399(A) which, considered in conjunction with paragraph 398, acknowledges that the presumption that the public interest requires the deportation of offenders such as this Appellant is subject to the following exception, namely where:

“(a) The foreign criminal has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and
(i) the child is a British Citizen; or
(ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case
(a) it would be unduly harsh for the child to live in the country to which the person is to be deported; and
(b) it would be unduly harsh for the child to remain in the UK without the person who is to be deported; or
“(b) The foreign criminal has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen or settled in the UK, and
(i) the relationship was formed at a time when the person (deportee) was in the UK lawfully and their immigration status was not precarious; and
(ii) it would be unduly harsh for that partner to live in the country to which the person is to be deported, because of compelling circumstances over and above those described in paragraph EX.2. of Appendix FM; and
(iii) it would be unduly harsh for that partner to remain in the UK without the person who is to be deported.”
5. In this context, it is important to highlight the concession in the Secretary of State’s decision:

“It is considered unduly harsh for your daughter to follow you to Iran.”

This short statement refers to the first of the Appellant’s two children, who are now aged seven years and almost one year respectively. The younger child had not been born when the decision was written. It is now confirmed that this concession applies to the younger child also. Furthermore, there was no dispute about the qualifying conditions relating to genuine and subsisting parental relationship and the British citizenship of the children. From this it follows that the sole question for the FtT was whether it would be unduly harsh for either child to remain in the United Kingdom without the Appellant, their father.

6. Two main arguments were formulated by Ms Aboni on behalf of the Secretary of State. First, it was contended that the FtT had failed to give appropriate weight to the public interest in deportation. In our judgement, this discrete challenge is confounded by a consideration of the admirably and assiduously detailed decision of the FtT as a whole and, in particular, [65] thereof.

7. The second argument advanced was that the decision is inadequately reasoned. We consider this argument unsustainable also. The decision of the FtT is characterized by its commendably careful consideration of all the evidence, its clear findings and the articulation of supporting reasons, both express and readily implied.

8. Permission to appeal was granted in this case upon a renewed application. The initial application was refused in the following terms:

“In appeals of this nature it is the task of the Judge to make findings of fact on the basis of the evidence and to provide adequately clear reasons for those findings. That is precisely what the Judge did. The findings made by the Judge were open to him on the basis of the evidence adduced.”

This initial refusal of permission succinctly summarizes the irrationality standard. While it is not comprehensive of all of the judicial duties engaged in this appeal, it addresses those that were most important.

9. We conclude that the vitiating factor of irrationality has not been demonstrated and we reject the two central arguments advanced on behalf of the Secretary of State for the reasons given.

Decision

10. We dismiss the appeal and affirm the decision of the FtT.

THE HON. MR JUSTICE MCCLOSKEY
PRESIDENT OF THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

16 March 2017