Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU004162015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 19 May 2016
On 15 June 2016

Before

UPPER TRIBUNAL JUDGE PERKINS

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
v

Mutsa Cornish
(Anonymity direction not made)
Respondent
Representation:
For the Appellant: Mr C Avery, Senior Home Office Presenting Officer
For the Respondent: Mr A Slatter, Counsel, instructed by Richmond Chambers LLP
DECISION AND REASONS
1. I see no need for, and do not make, any order restricting publicity about this appeal.
2. Here the Secretary of State appeals a decision of the First-tier Tribunal allowing the appeal of the respondent, hereinafter "the claimant", against a decision of the Secretary of State on 20 May 2015 to refuse her leave to remain on human rights grounds.
3. The claimant arrived in the United Kingdom with permission as a visitor in May 2002. Her leave was extended until 13 November 2002 and on 19 November 2002 she claimed asylum. The application was unsuccessful, a subsequent appeal was dismissed and she was refused permission to appeal further. She became appeal rights exhausted in November 2004.
4. In June 2005 she was served with a notice to a person liable to removal because she had been arrested for assisting the illegal entry of her daughter into the United Kingdom. That arrest led to her subsequent conviction and sentence of fourteen months' imprisonment on 8 February 2006.
5. In February 2006 she made further representations for a fresh claim for asylum.
6. On 6 February 2010 she was given a certificate of approval for marriage. On 22 June 2011 she was given a notice of liability for deportation and on 8 July 2011 she made further submissions both in support of a claim for asylum and a contention that removing her would interfere disproportionately in her private and family life.
7. On 28 September 2011 she was issued with an asylum "Reasons For Refusal And Reasons For Deportation Decision" letter. She appealed and on 15 November 2011 the appeal was allowed on human rights grounds. She was given six months' discretionary leave to remain until 22 July 2012. While that leave was extant she made a further application for leave to remain and her leave was extended until 17 April 2014. On 4 April 2014 she applied for further leave to remain. On 8 March 2015 (approximately eleven months after the application was made) she was informed that the Secretary of State intended to deport her. This was explained by reference to Chapter 13 of the Immigration Directorate Instructions under the heading "Article 8 guidance", Section 7.4, which states:
"Where a foreign criminal has previously been granted limited leave on the basis of Article 8, he will only be granted further leave if he qualifies under the Article 8 provisions set out in paragraphs 398 to 399A, even if his first period of leave was granted before those provisions came into force, or before the previous private and family life Rules were introduced on 9 July 2012."
8. The letter acknowledges that the claimant was not given leave under Part 13 of the Immigration Rules but said that the claimant's deportation remained conducive to the public good under paragraph 398(b) of the Immigration Rules.
9. The claimant married on 12 February 2011.
10. At paragraph 24 of the refusal letter the Secretary of State says:
"You claim to have a family life in the UK with your partner, Richard Cornish. The requirements of the exception to deportation on the basis of family life with a partner are set out at paragraph 399(b) of the Immigration Rules. This exception applies where:
(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."
11. The letter then makes it plain that it is accepted that the appellant is married to a British citizen, one Richard Cornish. The Secretary of State found that their relationship was formed when the claimant was in the United Kingdom unlawfully and, in any event, at all material times her status was precarious.
12. Further, the Secretary of State did not think it unduly harsh for Mr Cornish to live in Zimbabwe. English is one of the official languages of Zimbabwe. He has transferable skills as a funeral director and the claimant's experience of life in Zimbabwe could help him establish himself there.
13. Although Mr Cornish claimed to have family responsibilities towards his mother the Secretary of State decided that was a responsibility shared with his brother and if he relocated to Zimbabwe his brother or others including the local authority could provide the care that is necessary.
14. At paragraph 30 the Secretary of State explained that it would not be unduly harsh for Mr Cornish to remain in the United Kingdom without the claimant. They could maintain contact "through modern methods of communication, such as email, telephone, webcam etc." and he could visit if that is what he wanted to do.
15. The Secretary of State then explained that the application could not succeed on private life grounds because the applicant had not been lawfully resident in the United Kingdom of most of her life.
16. I do not think anything turns on this but I find it a troubling feature of the refusal letter that although the Secretary of State, correctly, when considering "private life" recognises that the Rules provide an exception at 399A(b) where "the foreign criminal is socially and culturally integrated in the UK" but when applying that Rule at paragraph 35 the Secretary of State says: "This evidence alone is not sufficient to demonstrate that you are socially and culturally integrated into society to a level that your deportation would have a profound negative effect upon your local community". There may be good reasons for finding that the case does not come within paragraph 399A(b). I do wonder why the Secretary of State puts this still more demanding gloss on Rules that are already hard to satisfy.
17. The letter shows that the Secretary of State then looked for "very compelling circumstances" that should lead to a decision to allow the applicant to remain. The best point that can be taken here was that the claimant helped look after her mother-in-law. This was not thought to amount to a "very compelling circumstance to add weight to the public interest in seeing you deported".
18. The letter then told the claimant, correctly, that she could appeal under Section 82(1) of the Nationality, Immigration and Asylum Act 2002 from within the United Kingdom. It reminded her that the grounds were limited by statute. The only conceivably relevant ground would be that removal would be unlawful under Section 6 of the Human Rights Act 1998.
19. The grounds of appeal to the First-tier Tribunal clearly and appropriately show that it is the claimant's case that the decision is unlawful under Section 6 of the Human Rights Act 1998 with specific reference to Article 8 of the European Convention on Human Rights.
20. The first point of substance taken in the grounds is that the interference with the claimant's and her husband's private and family life is "not in accordance with the law" for the purpose of question 3 posed by Lord Bingham in R (Razgar) v SSHD [2004] UKHL 27 at 17.
21. Paragraph 1 of the Notice of Decision relies unequivocally on paragraph 399C of the Immigration Rules. It correctly sets out the term of the Rule beginning:
"Where a foreign criminal who has previously been granted a period of limited leave under this Part applies for further limited leave or indefinite leave to remain his deportation remains conducive to the public good and in the public interest notwithstanding the previous grant of leave."
22. The grounds assert that this patently does not apply. This claimant has never been given a period of leave under that part of the Immigration Rules and so clearly cannot be a foreign criminal because of that Rule. The Secretary of State recognises that the leave was not granted under Part 13 of the Immigration Rules but maintains at paragraph 16 of the Notice of Decision that the claimant's deportation remains conducive to the public good under paragraph 398(b) of the Immigration Rules.
23. The grounds further contend that the claimant is not a "foreign criminal" because that is a status derived from the UK Borders Act 2007 and the claimant is not subject to deportation under that Act.
24. Paragraph 4.2 of the grounds asserts that the Secretary of State applied the wrong law when considering the human rights claim. It is the claimant's contention that the application for an extension of leave should have been considered under the Secretary of State's discretionary leave policy. The ground says that there are transitional agreements so that a person such as the claimant who had been given discretionary leave before 9 July 2012 would have any further application determined under the discretionary leave policy. The claimant's conviction did not and does not exclude her from the grant of discretionary leave for the standard period of three years. The grounds say this was explained particularly in the letter of 23 March 2015.
25. Point 5 of the grounds maintains that in any event deportation cannot be "necessary in a democratic society for the prevention of disorder or crime" in the present circumstances. This is particularly because the claimant has been given two periods of leave and her circumstances have not changed adversely.
26. Similarly any interference was not proportionate to any legitimate public end.
27. The grounds recognise that the Tribunal would have to consider Section 117 of the Nationality, Immigration and Asylum Act 2002 as amended but insisted the claimant is not a foreign criminal.
28. However, even if Part 5A of the 2002 Act applies then it is the claimant's case that the effect of deportation on her husband would be unduly harsh.
29. Finally the grounds maintain that the lapse of time and grant of leave on two occasions created sufficiently compelling and therefore exceptional circumstances to outweigh the public interest in deportation.
30. The First-tier Tribunal made several favourable findings including that the claimant and her husband were honest witnesses and that their marriage was genuine and longstanding.
31. The First-tier Tribunal found that it would be contrary to the United Kingdom's obligations under the European Convention on Human Rights to deport the claimant to Zimbabwe.
32. Additionally the First-tier Tribunal found that the claimant is not a foreign criminal and therefore the case does not have to be considered under Section 117 as amended of the 2002 Act.
33. The Secretary of State was given permission to appeal.
34. Paragraph 1 of the Secretary of State's grounds contends that the case does not depend on the claimant being a foreign criminal within the 2007 Act. The Secretary of State's decision is based on the claimant's deportation being conducive to the public good and, in any event, the claimant is a foreign criminal within Section 117D of the 2002 Act.
35. The ground further asserts that the claimant is a foreign criminal and that Part 13 of the Immigration Rules applies to her case.
36. The remaining grounds contend that Part 13 of the Immigration Rules does apply and that there is still public interest in removal notwithstanding the finding that the conviction is "extremely stale".
37. Mr Slatter has prepared a very detailed Rule 24 response. It sets out a very helpful chronology of the case. The arguments raised in reply are not very different from those relied upon in the grounds.
38. I heard submissions from both parties.
39. I have no hesitation in concluding that the First-tier Tribunal erred in law. There is an unequivocal statutory obligation on the Tribunal to follow Section 117 of the 2002 Act. The phrase "foreign criminal" is defined in Section 117D(2) and this claimant plainly falls within that definition. It is immaterial that the claimant may not be a foreign criminal for the purposes of the 2007 Act. That does not impact on the Tribunal's duty to apply the 2002 Act. The First-tier Tribunal has not directed itself properly.
40. It follows therefore that I set aside the decision of the First-tier Tribunal.
41. If I can remake the decision without a further hearing then that is how I should dispose of this appeal.
42. There are several findings of fact by the First-tier Tribunal which have not been criticised directly or at all.
43. The First-tier Tribunal Judge considered carefully Section 117B and made findings in the claimant's favour. These include her ability to speak English, her being integrated into society and not being a burden on public funds.
44. The First-tier Tribunal Judge further made clear and strong findings that the claimant is in a genuine and subsisting marriage.
45. Section 117B(4) requires that little weight be given to a relationship formed with a qualifying partner that is established by a person at a time when the person is in the United Kingdom unlawfully. I note that unlike the Immigration Rules there is no requirement to give little weight to a "family life" relationship that is acquired when the status of the person is precarious.
46. It is also plain that the claimant's deportation is in the public interest because Section 117C(1) says in terms: "The deportation of foreign criminals is in the public interest."
47. My task is to balance the clear public interest in the deportation of the claimant as a foreign criminal with the private and family life rights recognised in the Act of other people.
48. Clearly there is some significant private life established by her role in the community where she is a regular and active member of a local Catholic church. This must be given some weight but it must not be given very much weight. Section 117B(5) requires that "little weight should be given to a private life established by a person at a time when the person's immigration status is precarious."
49. The claimant's immigration status has always been precarious and although I have noted the evidence, being mainly a supporting letter and statements from friends, I can give little weight to it. Nevertheless little weight does not mean no weight and it is a small nudge in favour of allowing the claimant's appeal.
50. There are no children to consider.
51. However, the claimant's husband clearly has rights under the Act that stem from or reflect the requirements of the European Convention on Human Rights.
52. His relationship with the claimant started in 2008. They married, with the Secretary of State's permission, in February 2011 and the claimant has had leave since 25 January 2012. There is no statutory obligation to give the relationship "little weight", at least not when the relationship became part of the claimant's family life, which, at the very latest, was when they married in February 2011.
53. His rights must be balanced against the public interest in deporting the claimant. I remind myself that there is public interest in deporting the claimant because that is what Section 117C(1) states. However, the interest is variable. Section 117C(2) provides that the more serious the offence committed by the foreign criminal the greater is the public interest in deporting the criminal. Here the sentence was fourteen months imprisonment. I do not know very much about the circumstances leading to the conviction. The Secretary of State did not obtain a copy of the sentencing remarks. Mr Avery speculated, based on his considerable experience, that they would not be available now because the courts do not keep records beyond about four years. I have to make the obvious repost that the records would have been available if the Secretary of State had shown more interest in deporting the claimant soon after she had offended. All I know with confidence is that it is criminal misconduct that had attracted a sentence of fourteen months' imprisonment and it involved some kind of dishonesty to facilitate a relatives' entry to the United Kingdom. It clearly was not a trivial matter but it is some way off the "at least four years" sentence that requires there to be "very compelling circumstances, over and above those described in Exceptions 1 and 2" before an application can succeed on human rights grounds.
54. I also direct myself that Exception 2 under section 117C(6) applies where the effect of deportation on the claimant's husband would be "unduly harsh". This necessarily implies that the law assumes that some degree of harshness is due. Deportation appeals should not be allowed on human rights grounds just because there would be difficult consequences for the partner. The consequences leading to an appeal being allowed must be both harsh and unduly harsh.
55. Clearly the claimant's husband would have to choose between continuing his married life with a claimant in Zimbabwe or remaining in the United Kingdom.
56. Although the claimant's husband has strong links in the United Kingdom including his job and family commitments to his mother his evidence, supported by a Roman Catholic priest, Father John Byrne, suggests to me that the claimant and her husband value their marriage highly and if there was no alternative the claimant's husband would join her in Zimbabwe.
57. I asked Mr Avery to explain why it would not be unduly harsh for him to live there. Mr Avery suggested that if it was unduly harsh to expect someone to live in a country that was poorer than the United Kingdom then anyone who married someone from a country poorer than the United Kingdom could insist on that person remaining in the United Kingdom.
58. I take Mr Avery's point and remind myself that some harshness is necessary before something can be unduly harsh. Nevertheless I do consider the material.
59. Clearly the claimant's husband has a genuine fear of living in Zimbabwe. However, it is not suggested he has any actual knowledge of life in that country and can only form his views from the jaundiced perspective of one who does not want to leave the United Kingdom and is informed by somebody who does not want to go to Zimbabwe.
60. Nevertheless the fact that he has a genuine fear is a consideration to which some weight must be attached.
61. I also accept the claimant's concern to be well-founded that her husband would be in a disliked minority in Zimbabwe. I accept the claimant's evidence that she has no contacts in that country anymore. Her children live in South Africa. She has been away for some time. Significantly, the claimant says she has sisters in Zimbabwe but then explained that although they are still resident in Zimbabwe they spend most of their time with their children and grandchildren in South Africa.
62. She then explained that neighbouring countries are showing increasing xenophobia towards Zimbabweans because they are seen as a nuisance as they escape from the untold suffering in Zimbabwe.
63. I have also considered the evidence in the Zimbabwe COI Report of July 2012 referring to the difficulties faced by white people. They are a dwindling minority in Zimbabwe although several thousand white people still live there.
64. The idea that he could go to Zimbabwe and establish himself as an undertaker or funeral director really seems fanciful in the extreme. He would be moving to a desperately poor country. It is said to be the second poorest on earth. He would have the disadvantage of being a white man in a country that has learned not to like white people and his wife has little social support. The people most likely to help her are there for only part of their time. That is a clear indication of how difficult conditions are for them and if that is how it is for them it is going to be worse for the claimant.
65. With respect to Mr Avery, Zimbabwe is not just a country less prosperous than the United Kingdom. It is an impoverished, racially divided dictatorship. Life there would be harsh for Mr Cornish.
66. When I evaluate the importance of deportation and bear in mind the public interest I have to consider to some extent the approach of the Secretary of State. Under her present Rules she has made the order that she has but she has on two previous occasions given the claimant leave to remain and did not seem to think about deporting the claimant until 2011, which was some five years after she had come out of prison. This is not a case where there is any explanation for the need to remove having increased in time. For example it is not suggested that the claimant has misbehaved further.
67. The rather tardy attitude taken by the Secretary of State to her deportation does not suggest to me that there is a strong public interest in her being deported although the interest is plainly there. This is not a case of an application being delayed because of limited resources. It is a case of a person who was twice given leave to remain after she came out prison. Since then she has established herself in the community and kept out of trouble.
68. I am persuaded that the claimant's deportation would have an unduly harsh effect on her husband and for that reason and that reason only the appeal should be allowed.
69. I therefore allow the Secretary of State's appeal against the First-tier Tribunal's decision. I substitute the decision allowing the claimant's appeal against the decision of the Secretary of State to deport her.
Notice of Decision
The Secretary of State's appeal against the First-tier Tribunal's decision is allowed. I set aside the First-tier Tribunal's decision.
I have re-determined the Respondent's appeal against the Secretary of State's decision and I allow the Respondent's appeal against that decision.

Signed

Jonathan Perkins
Judge of the Upper Tribunal

Dated 15 June 2016