Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal no: HU/ 02414/2016

THE IMMIGRATION ACTS

At
Decision & reasons Promulgated
On 12 July 2017
On 13 July 2017

Before:
Upper Tribunal Judge
John FREEMAN
Between:
Abraham [P]
appellant
and

respondent
Representation:
For the appellant: Benjamin Hawkin (counsel instructed by Duncan Lewis & Co, Harrow)
For the respondent: Mr S Staunton

DECISION AND REASONS
This is an appeal, by the , against the decision of the First-tier Tribunal (Judge Reidy Flynn), sitting at Taylor House on 5 September 2016, to an appeal against a deportation order, signed 8 January 2015, by a citizen of Ghana, born 12 April 1959. The appellant came here as an asylum-seeker in 1995: his appeal against refusal was dismissed, but in 1996 he married a woman settled here: in 2000 he was given leave to enter on that basis, and in 2002 indefinite leave to remain; but in 2005 his application for British citizenship was refused. Since then, the appellant and his wife have had five children in this country.
2. The decision under appeal came about because in 2013 the appellant pleaded guilty to serious offences of immigration fraud, for which he was sentenced to a total of four years' imprisonment. This brought him into the category of a 'serious offender' (see NA (Pakistan) [2015] EWCA Civ 140), to whom the provisions of paragraph 399 (a) of the Immigration Rules, and s. 117C (6) of the Nationality, Immigration and Asylum Act 2002 applied. The relevant provisions were set out in full by the judge at paragraphs 63 and 64, and there is no need to repeat them here.
3. The appeal turns on the way the judge dealt, or did not deal with the requirements of those provisions, which demand consideration of whether there were 'very compelling circumstances', in the case of paragraph 399 (a), 'over and above those described in paragraphs 399 and 399A', and in the case of s. 117C (6), 'over and above those described in Exceptions 1 and 2'.
4. The judge made a very comprehensive and careful assessment of the facts, and said at paragraph 65 "It is common ground that the only issue in this appeal is whether there are very compelling circumstances over and above those set out in paragraphs 399 and 399A". The basis on which she allowed the appeal appears at her paragraphs 97 - 99. At 97, she found that the appellant's family circumstances, which she summarized "? cumulatively amount to very compelling circumstances". At paragraph 98, she found that the appellant met the requirements of s. 117B; but the point at which she treated the relevant provisions, as identified at 2, was paragraph 98.
5. What the judge said there was this:
I also find that he has satisfied Section 117C (5) (6) since he has demonstrated that his family's circumstances are very compelling. I should make it clear that it is the very serious effect his removal to Ghana will have on his wife and children, not on the appellant, that has led me to this conclusion.
6. The correct approach is set out in NA (Pakistan) at paragraph 37:
In relation to a serious offender, it will often be sensible first to see whether his case involves circumstances of the kind described in Exceptions 1 and 2, both because the circumstances so described set out particularly significant factors bearing upon respect for private life (Exception 1) and respect for family life (Exception 2) and because that may provide a helpful basis on which an assessment can be made whether there are "very compelling circumstances, over and above those described in Exceptions 1 and 2" as is required under section 117C(6). It will then be necessary to look to see whether any of the factors falling within Exceptions 1 and 2 are of such force, whether by themselves or taken in conjunction with any other relevant factors not covered by the circumstances described in Exceptions 1 and 2, as to satisfy the test in section 117C(6).
7. The judge made findings of fact which it is not suggested would not have entitled her to come to the conclusion she did, if that had been properly explained. Equally, I do not think it could reasonably have been suggested that this would have been the inevitable result of doing so. None of the judge's findings of fact were unreasonable, or irrelevant; but the Secretary of State, and the public, were entitled to specific consideration of the 'over and above' requirement.
8. This appellant was not only a serious offender, but one who had exploited his settled status to commit immigration fraud on behalf of others. Each of the excepted provisions relevant to the basis given by the judge for her decision (paragraphs 399 and 399A of the Rules, and Exception 2 in s. 117B (5) refers to the unduly harsh effect of the appellant's deportation on a partner or child with whom he has a 'genuine and subsisting relationship'. There needs to be a reasoned conclusion about what was over and above that effect, on the basis set out in NA (Pakistan), for a lawful decision in a case of this kind.
9. Since the judge's findings of fact can stand, the parties are agreed that there is no obstacle to this point to be resolved at a further hearing before her.
Appeal
Further hearing before Judge Flynn
(a judge of the Upper Tribunal)