Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/01347/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17th October 2016
On 1st November 2016

Before

UPPER TRIBUNAL JUDGE FRANCES

Between

Sohail Niamat
(anonymity direction NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr M Iqbal, instructed by Farani Javid Taylor Solicitors
For the Respondent: Mr D Clarke, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a citizen of Pakistan born on 25th January 1985. His appeal, against the Respondent's decision to make a deportation order under section 32(5) of the UK Borders Act 2007, was dismissed by First-tier Tribunal Judge Mayall on 26th October 2015.
2. The Appellant appealed on the ground that there was a conflict between two reported Upper Tribunal decisions and the judge had procedurally erred in law in failing to follow a reported decision. The judge's reliance on another decision subsequent to the appeal, without affording both parties an opportunity to make submissions on the matter, was such that it amounted to an error of law. In light of the findings made by the judge the Appellant's deportation would be unduly harsh.

3. Permission to appeal was granted by Upper Tribunal Judge Gill on 18th December 2015 on the following grounds: "Permission is granted in light of the conflicting decisions of the Upper Tribunal in Bossade and Ms. Adebayo on the one hand and KMO on the other hand. Whilst any judge sitting in the Upper Tribunal is not bound by other decisions of the Upper Tribunal whether or not reported, its decision to follow one line of cases as opposed to another cannot resolve the conflict notwithstanding anything it may say in an attempt to do so, given the doctrine of binding precedent." The appeal was adjourned pending the Court of Appeal decision in KMO.

4. In the Rule 24 response dated the 24th May 2016, the Respondent stated that there was no reason given for why this appeal was heard in country. The Secretary of State had certified the claim under section 94B of the 2002 Act. The Secretary of State had no record of the certificate being withdrawn and, notwithstanding what was said at the hearing, could find no record of this agreement at the CMR. Therefore, the Tribunal may need to consider this point in looking at the error of law. If an error of law was found, it was suggested that the appeal be struck out for lack of jurisdiction on the basis that a concession on jurisdiction, if wrong in law, did not create jurisdiction, Virk & Ors v Secretary of State for the Home Department [2013] EWCA Civ 652.

5. Secondly, the grant of permission stayed this case until KMO had been determined by the Court of Appeal. The Secretary of State stated that she could now point to the extempore judgment of the Court of Appeal in MM (Uganda) & Others, which was handed down on 20th April and in which the Court of Appeal held that KMO was correct. Therefore, the Upper Tribunal was invited to list this appeal for the first available hearing date.

Submissions

6. At the start of the appeal hearing, Mr Iqbal applied for an adjournment on the basis that, although the Appellant's previous representatives had received the notice of hearing on 13th September 2016, the Appellant could no longer afford to be represented by them. The Appellant only became aware of this on Thursday 13th October 2016. Mr Iqbal had been instructed late in the day and did not have the relevant papers. I found that the explanation given for the failure to instruct another representative in time to prepare for the hearing was not a satisfactory one. I gave Mr Iqbal a copy of the papers and adjourned the hearing to 2.30pm.
7. I refused to grant the adjournment in accordance with the overriding objective to deal with cases fairly and justly; avoiding delay and ensuring that both parties could participate fully in the proceedings.

8. Mr Iqbal came back before me at 2.30pm and did not renew his application for an adjournment, having had the opportunity to read the papers in this case. He noted the point made in the Rule 24 response in relation to jurisdiction. Mr Clarke, for the Respondent, did not seek to rely on such a point given that it was clear from paragraph 3 of the decision that the point was raised before the First-tier Tribunal Judge, who stated: "There was some dispute as to whether there was an in country right of appeal in this matter. Both parties informed me that at a CMR it had been decided by the judge that there was an in country right of appeal. I have seen no confirmation of that myself but both parties wished me to proceed on the basis that there was an in country right of appeal. I assume that this was on the basis that any certificate had been withdrawn or was no longer being relied upon."

9. Therefore, given that the Respondent did not seek to pursue the point that there was no in country right of appeal, it was appropriate for the First-tier Tribunal Judge to assume that the certificate was either withdrawn or no longer relied upon. There was no cross-appeal by the Respondent on this jurisdictional point and it was not relied on by Mr Clarke. Accordingly, the point raised in the Rule 24 response was not one on which the Respondent could now rely, given the lack of application for permission to appeal.

10. In relation to the substantive point, Mr Iqbal was in some difficulty given that the First-tier Judge had relied upon KMO and the Court of Appeal had endorsed the approach in that case. Further, the judge found against the Appellant whether he considered the case under KMO or Bossade and MAB. Mr Iqbal did not seek to make any further submissions.

11. Mr Clarke submitted that the grounds were premised on the basis that counsel at the hearing was unable to make submissions on KMO, which was promulgated subsequent to the appeal. However, there was a concession at paragraph 6 of the decision from both parties that Bossade was in fact wrongly decided. There was no error on the part of the judge since MM (Uganda) had found that there should be a proportionality assessment of unduly harsh. The judge had applied that approach in his decision and therefore there was no error of law.

Discussion and Conclusions

12. The judge's decision is very thorough and he deals with all three decisions, KMO, MAB and Bossade. The judge preferred the approach in KMO, which has now been endorsed by the Court of Appeal, and therefore his assessment of the evidence could not be said to be based on an error of law.

13. The judge made findings on whether it would be unduly harsh for the Appellant's daughter to remain in the UK without her father, even though he found that it was in her best interests to maintain full parental relationship with both parents. The judge concluded at paragraph 95:

"Given the disdain for his daughter's welfare which I have found implicit in the storing of the drugs in the child's toy and the storing of blocks of heroin in the marital home, that is not as powerful a consideration in this case as in most. Similarly the fact that the period during which the father and daughter lived together was merely five months is another reason why the parental bond may not be as strong as it would normally be. The daughter has had to live for a considerable period without her father being present, albeit with visits to prison. The mother and daughter have considerable family support from the mother's family."

14. The judge found that, although it was in the daughter's best interests for her father to remain in the UK, a balance had to be struck between that consideration and the powerful public interest considerations, including the statutory presumption that the deportation of foreign criminals is in the public interest and the more serious the offence the greater the public interest in deportation.

15. The judge accepted that the Appellant's deportation was likely to result in the end of family life which would be distressing for the Appellant's partner and child. He found that the family relationship was short lived and undertaken at a time when the parties knew that the Appellant had no right to remain. He concluded that it would not be unduly harsh, if the Appellant were deported to Pakistan, for the Appellant's partner and child to remain in the UK.

16. The judge's conclusion that this was proportionate in all the circumstances was one which was open to him on the evidence and was consistent with the decision of the Court of Appeal in MM (Uganda). There was no error of law in the judge's decision and I dismiss the Appellant's appeal.

Notice of Decision

Appeal dismissed.

No anonymity direction is made.

J Frances

Signed Date: 31st October 2016

Upper Tribunal Judge Frances

TO THE RESPONDENT
FEE AWARD

I have dismissed the appeal and therefore there can be no fee award.

J Frances

Signed Date: 31st October 2016

Upper Tribunal Judge Frances