Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/01562/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7 November 2017
On 16 November 2017

Before

THE RIGHT HONOURABLE LORD BOYD OF DUNCANSBY
(SITTING AS A JUDGE OF THE UPPER TRIBUNAL)
UPPER TRIBUNAL JUDGE CHALKLEY

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Eniola Abosede ademola
(anonymity direction not made)
Respondent

Representation:

For the Appellant: Ms Isherwood, Home Office Presenting Officer
For the Respondent: Ms Peterson

DECISION AND REASONS

1. This is an appeal by the Secretary of State who appeals with leave against a determination of First-tier Tribunal Judge Devittie promulgated on 6 September 2017. The respondent in this case is Miss Eniola Abosede Ademola. She is a Nigerian citizen who is currently 45 years of age. She has a child who was born on 15 August 2002 and who has Irish citizenship. The respondent and her child came to the United Kingdom in 2003. The respondent has two convictions which are detailed at paragraph 2 of the determination, in particular she was convicted on 26 March 2013 at Woolwich Crown Court of theft by finding and on 3 April 2013 she was sentenced to 30 months' imprisonment. The sentencing remarks of the trial judge are recorded at page 2.

2. The Secretary of State issued a deportation order on 29 June 2015 in respect of the respondent's convictions. The respondent appealed against the decision to refuse her human rights claim. That appeal was allowed by FtT Judge Callow on 20 November 2015. The Secretary of State appealed that decision. The appeal was allowed by UTJ Allen on 22 March 2017. In his decision he said that the essential difficulty was the failure to address the fact of the Irish nationality of the appellant's child. The appellant would have a derived right of residence in Ireland applying Zambrano principles. He directed that the case be returned to the FtT to address the article 8 claim in the context of the appellant and her daughter living in Ireland.

3. Accordingly the issue before the FtT was whether or not it would be unduly harsh for the child to be removed from the United Kingdom to Ireland where she has citizenship. In his determination Judge Devittie relied on the Court of Appeal judgement in MM (Uganda) v SSHD 2016 EWCA 617 as to what is meant by unduly harsh in Section 117C(5) of the 2002 Act.

4. The appeal by the Secretary of State focuses on whether or not the Upper Tribunal Judge gave sufficient weight to the public interest considerations of removing a foreign criminal under reference to The Secretary of State for the Home Department v AJ (Zimbabwe) [2016] EWCA Civ 1012. At paragraph 17 the Court of Appeal held that it will be rare for the best interests of the children to outweigh the strong public interest in deporting foreign criminals. In order to establish a very compelling justification overriding the high public interest in deportation there must be some additional feature or features affecting the nature or quality of the relationship which takes the case out of the ordinary.

5. Applying AJ (Zimbabwe) we are satisfied that there is nothing in the findings of Judge Devittie that would suggest additional features in the nature and quality of the relationship that would take this case out of the ordinary. For these reasons we find that there is an error of law and we shall allow the appeal.

6. In her submissions Ms Peterson asked that we remake the decision today, and as she said, bring this matter to an end. We have some sympathy with her given the long history that this has had through the Tribunals. Nevertheless we do not consider that it would be in the interests of justice for us to do that. We are particularly concerned about the position of the child. While of course there is not an overriding consideration, the best interests of the child are a primary consideration for any Tribunal. As well as hearing from the respondent we expect to hear evidence directed to the child's welfare and the possible consequences for her if she were required to relocate to Ireland. That may include school reports and a psychological assessment. Such evidence is not available today.

Notice of Decision

7. We find an error of law. We shall allow the appeal and set aside the decision of Judge Devittie. We shall remit this case to the First-tier Tribunal for a rehearing before a judge different from Devittie or Callow. We consider that a time of two-and-half-hours would be required for evidence and redetermination. For the avoidance of doubt the FtT should address the article 8 claim in the context of the appellant and her daughter living in Ireland

8. No anonymity direction is made.

LORD BOYD OF DUNCANSBY
Sitting as a Judge of the Upper Tribunal
(Immigration and Asylum Chamber)

9 November 2017