Tribunal decisions

The decision

IAC-AH-CO-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/02036/2016

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 7th February 2017
On 15 March 2017

Before

UPPER TRIBUNAL JUDGE REEDS

Between

MC
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr I Khan, Counsel
For the Respondent: Mr A McVeety, Senior Home Office Presenting Officer

DECISION AND REASONS
Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.
Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.
1. The Appellant, with permission appeals the decision of the First-tier Tribunal who, in a determination promulgated on 8th July 2016 dismissed his appeal against the decision of the Secretary of State to refuse to revoke his deportation order. He is a national of Bangladesh who came to the attention of the UK authorities in February 2005 whilst attempting to board a connecting flight to Canada from Heathrow using a forged British passport. On arrest he had claimed to have lived in the United Kingdom since 1996. On 17th February 2005, he appeared before the Crown Court and was convicted of an offence of attempting to obtain services by deception and of an offence of using a false instrument. On 1st April 2005 he was sentenced to a period of twelve months’ imprisonment to run concurrently for each offence and the sentencing judge recommended that he be deported at the end of his sentence.
2. On 9th August 2005 a deportation order was made against the Appellant which was served on 15th August 2005. On 19th August 2005 the order was implemented and the Appellant was removed to Bangladesh. In 2008, a marriage was arranged between the Appellant and his wife. She travelled to Bangladesh on 5th August 2008 and met him on 9th August. They duly became engaged and they were married in Bangladesh. They remained together until October of that year before she returned to the United Kingdom. Thereafter in February 2009 the Appellant made applications for entry clearance on the basis of marriage and was refused.
3. As set out in the First-tier Tribunal’s recitation of the immigration history, various appeals against that decision were refused or were unsuccessful. During the intervening period two children were born as a result of their marriage. On 3rd November 2011 an application was made for revocation of the deportation order. At that stage six years had elapsed since making the order. It appears that the application was then resubmitted on 6th August 2012 but as no decision had been made by 27th November 2012 a pre-action protocol for judicial review was submitted. It resulted in a decision letter of 10th May 2013 by the Secretary of State who refused to revoke the deportation order that decision was the subject of an appeal and a hearing before the First-tier Tribunal in July 2013.
4. In a determination promulgated on 9th August 2013, the panel dismissed the appeal under the Immigration Rules and on Article 8 grounds. There is a copy of that decision in the papers.
5. It appears that there was a further application for revocation of the deportation order which was refused but no appeal was lodged but on 17th August 2015 submissions were made for revocation of the deportation order which resulted in a decision letter dated 12th January 2016 which is recorded in the First-tier Tribunal’s determination at paragraphs 4 and 5. As summarised there, the Secretary of State considered the Appellant’s immigration history and the evidence that had been provided as to his family life with his wife and two children. It was not accepted that he had a genuine and subsisting parental relationship with the children nor was it accepted that it would be unduly harsh for them to live in Bangladesh or for them to remain in the UK without him. It was considered that they could continue living with their mother as primary carer and could have visible contact with him during holiday periods which had already occurred. It was considered that his wife could continue to provide for the children’s emotional welfare throughout their childhood. The decision letter quoted the First-tier Tribunal’s decision in 2013 which related to one of their children. The decision letter also considered the relationship between the Appellant and his wife in looking at the public interest, it was considered that there was required “significant public interest” of his deportation under the Article 8 claim did not outweigh the public interest in maintaining the deportation order against him.
6. The Appellant appealed that decision and it came before the First-tier Tribunal in June 2016. The judge heard evidence from the Appellant’s wife and considered documentary evidence that had been submitted in the bundle. The decision is set out at paragraphs 10 to 21 in which he dismissed the appeal under the Immigration Rules and on human rights grounds (Article 8). In his findings of fact he made reference to what were described as the “undisputed facts” and the chronology to which I have already referred and in particular his sentence of twelve months’ imprisonment. He found that to be a serious offence but accepted that in general terms there were “far worse crimes”. The judge found that the parties were married by way of an arranged marriage and that that was the choice made by the Appellant’s wife and family. He accepted, however that there was a genuine and subsisting relationship between the Appellant and his wife and that she was a British citizen. Thus he found the requirements of paragraph 399(b) was met but not 399(b)(i) was met. He considered that she had duel Bangladesh nationality and that she had spent periods each year in Bangladesh with her husband. As to the children, he found that the Appellant did have a genuine and subsisting relationship with the children and had spent significant time with them over the last few years. He considered their ages and that they had spent time living with their father on visits in Bangladesh; a country that was familiar to both the Appellant’s wife and children. He found that there was no evidence to indicate it would be unduly harsh for the children to live in Bangladesh with their father and mother. (See 18). He accepted that the Appellant’s wife had family in the UK but that there was no form of dependency and therefore when carrying out the balancing exercise he reached the conclusion that “when looked at carefully within the framework of paragraph 399 do not suggest on balance that there is anything to suggest the deportation order should not be maintained.”
7. The Appellant sought permission to appeal that decision and permission was granted by First-tier Tribunal Judge Parker on 30th November 2016 on the following terms:-
“The grounds allege that the judgment interpreted paragraph 391 of the Immigration Rules and place insufficient weight upon the fact that ten years has elapsed since the making of the deportation order. It is further alleged that insufficient weight in considering the position of the Appellant’s British children, including their best interests.”
At paragraph 20 of his decision the judge states:“The deportation under the Immigration Act 1971 does not it seems to me place any timescale on the length that such deportation that should remain....” The judge subsequently refers to the provisions of paragraph 391(a) but I am not satisfied that those provisions have been correctly applied and I find that there is an arguable error of law. The complex interrelationship between the requirements in paragraph 390, 390A and 391 were considered by the Court of Appeal in SSHD v ZP (India) [2015] EWCA Civ 1197 but there is no reference to this authority in the judge’s decision. The judge made no specific reference to the best interests of the children which is also an arguable error of law.”
8. Thus the appeal came before the Upper Tribunal. Mr Khan, who appeared on behalf of the Appellant relied upon the grounds as set out in the grant of permission in particular he placed weight and reliance upon the judge’s finding at paragraph 20 that there was no length of time established as to how long the deportation order should remain in force which had taken no proper account of paragraph 391 of the Immigration Rules and that when looking at the Rules in the context of a conviction of less than four years, once ten years “the prescribed period” had passed it would not necessarily be the proper course for the order to remain in force. Thus it was submitted the judge had failed to take into account or properly take into account the Appellant’s situation, the length of time that had elapsed that the prescribed period had in fact been exceeded in the context of paragraph 391 and paragraph 20 of the determination had thus proceeded on the wrong legal basis.
9. It was recognised both in the grounds and by Mr K that there was some reference to the prescribed period at paragraph 21, but he submitted that the importance of paragraph 391 in the time frame was a matter relevant to the proportionality balance.
10. As to the best interests of the children, Mr K relied upon the recent decision of the President in Kaur and that the best interests must be assessed in isolation from other facts. He pointed to the assessment of the best interests which he said had not been carried out and was only expressed in brief terms at paragraph 17 in which an inference was made that they should live with both parents and nothing more had been said.
11. Mr Khan made reference to the British citizenship of both children and that no proper account had been taken of that either when considering their best interests or otherwise.
12. Mr Khan also made reference to the relevant policy of the Secretary of State in the IDIs none of which had been referred to. He also submitted that there had been evidence before the judge (set out in the Appellant’s wife’s statement) which had not been taken into account which made reference to difficulties in relocating to Bangladesh.
13. Mr McVeety, who appeared on behalf of the Secretary of State relied upon the Rule 24 response set out in the papers in which it submitted that the judge had directed himself appropriately and that the question on whether the maintenance for deportation order was proportionate turned upon the assessment under the Immigration Rules under paragraphs 398-399A which had been addressed. In his oral submissions Mr McV conceded that there had been no consideration of Section 117C, primary legislation which had been introduced and relevant to the legal framework but submitted that the judge had considered the public interest. He further submitted that there was little evidence about the best interests of the children and whilst a relevant consideration was the children’s British citizenship, he submitted it was not a “trump card” and would have to be taken into account alongside the criminality.
14. At the conclusion of the hearing I reserved my decision which I now give.
15. It does not appear that any of the parties put before the First-tier Tribunal the decision of the Court of Appeal in SSHD v ZP (India) [2015] EWCA Civ 1197, which is the decision of Underhill LJ concerning the relevant legal principles relating to applications of revocation of deportation orders. This decision was available at the time of the hearing. ZP (India) concerned a post-deportation revocation application made before 28th July 2014, when Section 117C came into force, unlike the present case in which those statutory provisions and primary legislation was in force. However the decision nonetheless gave assistance in considering the appropriate legal framework and issues that arose.
16. Since that decision and after the date of the decision of the First-tier Tribunal, a further decision of the Court of Appeal has been promulgated, IT (Jamaica) v SSHD [2016] EWCA Civ 392. There has also been the Supreme Court decision in Ali v SSHD. The decision in IT (Jamaica) concerned a post-deportation revocation application but after 28th July 2014 and therefore the primary legislation set out in Section 117 of the 2002 Act was in force.
17. The different factual matrix of those cases and the present one are that this Appellant has been outside the United Kingdom for the prescribed period of ten years (having been convicted of an offence of twelve months’ imprisonment and thus under four years’ imprisonment: see paragraph 391). Whilst it is accepted by the parties and recognised by the judge at [21] that the expiry of the period alone does not require the revocation of the deportation order, it is a factual difference that relates to this particular Appellant from the Appellants in the two cases that I have made reference to and is also a relevant consideration in the overall proportionality balance.
18. The First-tier Tribunal did not set out the appropriate legal framework applicable to this appeal. Whilst at [11] the First-tier Tribunal recited that the relevant Rules for 390, 391, 392 and 398(b) and 399, there was no reference to the primary legislation set out in Section 117 of the 2002 Act which was in force at the time of the decision in the hearing. Mr McVeety concedes that no such submissions were made before the judge concerning this which provide additional considerations involving foreign criminals and in particular the public interest.
19. I have considered whether this submission was material to the outcome of this particular case but have reached the conclusion that it was for the reasons I shall summarise.
20. Central to the appeal and the grounds relied upon by Mr K is the consideration of the public interest and the length of time that had elapsed when placed in the proportionality balancing exercise. In ZP (India) Underhill LJ held that in substance the approach in pre-deportation revocation cases under paragraph 390A and post-revocation cases under paragraph 391 is broadly the same. He went on to state at [24]:-
“... decision takers will have to conduct an assessment of the proportionality of maintaining the order in place for the prescribed period, balancing the public interest in continuing it against the interference with the applicant’s private and family life; but in striking that balance they should take as a starting point the Secretary of State’s assessment of the public interest reflected in the prescribed periods and should only order revocation after a lesser period if there are compelling reasons to do so (notes removed, paragraph breaks added).”
21. When looking at the “prescribed period” in this Appellant’s case that of ten years. Here, the Appellant has been out of the United Kingdom beyond the “prescribed period”. Further that paragraph makes reference to the proportionality balance and the issue of the public interest continuing the deportation order for the prescribed period or in this case it must be beyond the prescribed period.
22. As to the weight of the public interest that is set out in Section 117C which was not applied in the present appeal. Whilst the word used is “deportation” it is being used to convey not the just the act of removing someone from the jurisdiction but also the maintaining of the banishment for a period of time (see IT (Jamaica) [52]). Whilst the judge found that his relationship with his wife was genuine and subsisting under 399(b) he did not find that she could satisfy paragraph 399(i)(b) and at paragraph [16] found there was nothing to indicate that it would be unduly harsh for her to live in Bangladesh. In relation to the children, he found that the applicant had a genuine and subsisting parental relationship with the children. As set out by Mr Khan both children are British citizens, they are under 18 and are therefore qualifying children under Section 117D(i) and therefore Exception 2 applied.
23. In the decision of MM (Uganda) v SSHD [2016] EWCA Civ 450 it was stated:-
“I turn to the interpretation of the phrase ‘unduly harsh’. Plainly it means the same Section 117C(5) as in Rule 399. ‘Unduly harsh’ is an ordinary English expression. As so often, its meaning is coloured by its context. ...
[23] The context in these cases invites emphasis on two factors, [1] the public interest in the removal of foreign criminals and [2] the need for a proportionate assessment of any interference of Article 8 rights. In my judgment, with respect, the approach of the Upper Tribunal in MAB ignores this combination of factors. The first of them, the public interest and the removal of foreign criminals, is expressly vouched by Parliament in Section 117C(1) and Section 117C(2) then provides ‘the more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.’
[24] This steered the Tribunals and the court towards a proportionate assessment of the criminal’s deportation in any given case. Accordingly the more pressing the public interest in his removal, the harder it will be to show that the affect on his child or partner will be unduly harsh. Any other approach in my judgment dislocates the ‘unduly harsh’ provisions in their context. It would mean that the question of undue hardship would be decided wholly without regard to the force of the public interest in deportation in the particular case. But in that case the term ‘unduly’ is mistaken for ‘excessive’ which imports a different idea. What is due or undue depends on all the circumstances, not merely the impact on the child or partner in the given case. In the present context relevant circumstances certainly include the criminal’s immigration and criminal history.”
24. When considering the issue of undue harshness, the First-tier Tribunal was required to consider the public interest taking into account Section 117C. As set out in IT (Jamaica) the court must know what the public interest is in any particular circumstance in order to give appropriate weight to it (see [51]). The First-tier Tribunal was therefore to consider the Immigration Rules. It is at this juncture that I accept Mr Khan’s submission that an error occurred as identified in the grant of permission. The First-tier Tribunal at two separate places within the determination referred to the Immigration Rules and the statute and that they did not seem to place a timescale as to the length such a deportation order should remain (see paragraph 13). At paragraph 20 the judge also said:-
“The deportation under the Immigration Act 1971 does not it seems to me place any timescale on the length that such deportation order should remain and there is nothing within the evidence that suggests that the interests of the community which includes the maintenance of an effective immigration control requires the removal of such an order within a given timescale.”
That paragraph comes after his consideration of the Appellant’s criminality and it is therefore relevant to the public interest. I consider that the First-tier Tribunal erred when carrying out the proportionality balance by failing to take into account all the relevant balancing considerations and in particular, when considering the issue of undue harshness to determine the correct weight of the public interest in the light of the time that elapsed and the application of Section 117(2) and the nature of offending. At paragraph 53 of IT (Jamaica) the court made reference to the Tribunal examining the Immigration Rules to understand the length of the deportation in any particular case. The court went on to state:-
“From that the Tribunal is bound to observe that those Rules proceed on the basis that, in the absence of undue harshness, the appropriate period of absence from this jurisdiction in the case such as the Appellant’s is ten years (paragraph 391 of the Immigration Rules). That is a very long period in anyone’s life and so it is an indicator of the gravity of the effect on the community which the offence is considered to have. That is the period for which the deportee is expected to be removed from the jurisdiction. As has been said before, removal from jurisdiction inevitably entails separation from people and places previously enjoyed here, and the pain, inconvenience and hardship which that separation entails.”
The court went on to state at paragraph [54] that it was clear from Section 117C(2) that the nature of the offending was also to be taken into account in that balance. From the readings of those paragraphs, I do not read it to mean that the Court of Appeal was saying that once the ten years had elapsed the deportation order should be automatically revoked but that that was a relevant consideration to place in the balance with that of the public interest.
25. Whilst the judge did recognise that the passing of time alone did not require the revocation of the deportation order, the error made related to the relevance of the prescribed period and the issue of the public interest and the consideration of undue harshness which led to matters which were relevant balancing factors not being taken into account in the proportionality balance. This was not a case where the applicant had a subsisting parental relationship with the children at the time of the deportation order when it was made as the relationship with his wife and the birth of the children occurred thereafter. The judge did properly identify as a relevant consideration the terms upon which the relationship was entered into [see paragraph [16]] and that was a matter to put in the balance. However I accept the submission made by Mr Khan that there was no real consideration of the best interests of the children nor was there any assessment of the importance of the children’s British nationality in reaching the conclusion that they should go and live in Bangladesh with their mother to maintain family unity. I would accept Mr McVeety’s submission that it was not a “trump card” but it was a relevant consideration for the proportionate balance which is not taken account of. Furthermore the children’s best interests at the stage they were now at having entered full-time education which would preclude the significant time previously spent abroad was also not factored in.
26. Whilst the judge noted that the Appellant might not meet the requirements for Appendix FM, that may well not be the case in the light of the most recent decision of the Supreme Court.
27. Both advocates submitted that if an error of law was to be found, it was such that it would require the case to be remitted to the First-tier Tribunal for a rehearing. In the light of both advocates’ inviting that course, I consider that the correct outcome, having found an error of law is to set aside the decision and for it to be remitted to the First-tier Tribunal for a further hearing in accordance with the Practice Direction.

Notice of Decision
The decision of the First-tier Tribunal made an error on a point of law; to be set aside and the appeal is remitted to the First-tier Tribunal for a further hearing.
Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date

Upper Tribunal Judge Reeds