Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/01462/2016

THE IMMIGRATION ACTS

Heard at Hill Street, Birmingham
Decision & Reasons promulgated
On 16 March 2017
On 22 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

YASAR MONZOOR
Respondent

Representation
Appellant: Ms Aboni, Senior Home Office Presenting Officer
Respondent: Mr I Ali, of Counsel, instructed by ASR Legal Solicitors

DECISION AND DIRECTIONS

1. For the reasons articulated in our ex tempore judgment pronounced at the conclusion of the hearing and summarised below we dismiss the Secretary of State’s appeal. We shall continue to refer to Mr Monzoor as “the Appellant”.

2. The relevant provision of the Immigration Rules in the context of this appeal is paragraph 399(a), which contains an exception to the presumption that the deportation of an offender such as this Appellant is in the public interest. This exception applies 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.”
This enshrines, in effect, four conditions. It is common case that the first two conditions are satisfied. The task for the FtT was to apply the two “unduly harsh” conditions.

3. The grant of permission to appeal identified two arguable errors of law in the decision of the FtT. One of these questioned whether the Tribunal had taken into account the Appellant’s criminality in its application of the “undue hardship” tests having regard to the decision in MM (Uganda) v SSHD [2016] EWCA 450. We are satisfied that there is nothing in this criticism and no argument to the contrary was developed before us. Read fairly and fully it is clear that this factor was considered by the FtT, as [22] of its decision in particular demonstrates.

4. The other arguable error of law identified in the grant of permission raises the question of whether the FtT “correctly [set] the level of impact sufficiently high”. We consider that, properly analysed, this raises the question of whether the FtT’s conclusion that the “unduly harsh” tests fell to be resolved in favour of the Appellant was rationally open to it. In this context we would highlight what this Tribunal stated 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.”

5. There are two particular facts which identify this as a highly unusual case. The first is that the offences of which the Appellant was convicted occurred 13 and 14 years ago respectively and resulted in him being sentenced almost 12 years ago. The second is that the Appellant has subsequently become the sole carer of his daughter, now aged 13 years.

6. The central argument developed by Ms Aboni on behalf of the Secretary of State was that the “unduly harsh” tests were not correctly applied by the FtT because there was insufficient evidence to support the Tribunal’s conclusions. We engage with this argument by considering the evidence before the FtT and, in particular, those features thereof highlighted in the Tribunal’s decision. Approached in this way, we find that this challenge has no merit. Indeed, we would caution against the view, implicit in the Secretary of State’s challenge, that there must always (or even usually) be expert evidence of adverse impact on children. This is manifestly erroneous. The most important feature of the Tribunal’s decision, in this respect, is that the Judge was, plainly, amply equipped by the available evidence to make a sustainable assessment of the child’s best interests together with a sustainable application of the “unduly harsh” criteria in paragraph 399. In doing so, the Judge made clear findings, none of which is challenged.

7. The threshold of irrationality is not overcome. We conclude that this appeal must fail accordingly.

Decision

8. We dismiss the Secretary of State’s 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