Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/02738/2016

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 13 February 2017
On 19 April 2017

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and

ragiev wade
(ANONYMITY DIRECTION not made)
Respondent

Representation:

For the Appellant: Mr Diwnycz, Senior Home Office Presenting Officer
For the Respondent: Not present or represented

DECISION AND REASONS

1. The appellant, Ragiev Wage, was born on 27 December 1994 and is a male citizen of Jamaica. The appellant lives in Jamaica; he was deported from the United Kingdom on 1 January 2016. He appealed against the decision to make a deportation order (decision dated 7 August 2015) to the First-tier Tribunal (Judge Mitchell) which, in a decision promulgated on 8 September 2016, allowed the appeal. The Secretary of State now appeals, with permission, to the Upper Tribunal.
2. The appellant entered the United Kingdom as a visitor in August 2001. At that time he was 6 years old. Between February 2009 and October 2013 he was convicted six times in respect of offences which included attempted robbery, battery, robbery, common assault and taking a motor vehicle without consent (for which latter offence he was sentenced to a community order on 25 November 2013).
3. The First-tier Tribunal heard evidence from the parents of the appellant. The judge allowed the appeal finding that there existed “very significant obstacles to [the appellant’s] integration into the country to which [the appellant] is proposed to be deported”. (See Exception 1, Section 117B of the 2002 Act (as amended); see also paragraph 399A(c) of HC 395 (as amended)). The respondent does not challenge the judge’s finding that the appellant had “socially and culturally integrated in the United Kingdom” or “had been lawfully resident in the United Kingdom for most of his life”. The appeal therefore turned on the existence or absence of “very significant obstacles” to the appellant’s integration to Jamaican society.
4. I find that the decision of the First-tier Tribunal should be set aside. I have reached that decision for the following reasons.
5. First, I find that the judge’s assessment of “very significant obstacles” is flawed. First, the judge has failed to make a proper assessment of the evidence of the two witnesses from whom he heard oral evidence. At [36], the judge found that “the oral evidence and the circumstances as a whole to be sufficient to show upon the balance of probabilities that there are very significant and ongoing obstacles to the integration of the appellant into Jamaica”. The judge has accepted, without question, photograph evidence which appeared to show the appellant living in a stone structure on waste ground which he had allegedly constructed himself. It is not clear why he had constructed this structure given that he was in receipt of funds from his parents from the United Kingdom. I do not, of course, say that the judge could not have accepted the evidence of this photograph or, indeed, the oral evidence of the appellant’s parents but he appears to have done so entirely unequivocally, without giving reasons and without showing any apparent regard whatever for the fact that the appellant had been living in Jamaica for at least eight months where he had been funded by his parents prior to the First-tier Tribunal hearing. The grounds complain that the judge has applied too low a threshold to the determination of “very significant obstacles” and I agree, but would add that the judge has failed to carry out a proper holistic assessment of all the evidence before determining whether such obstacles existed. Foremost in his thinking appears to have been the appellant’s claim to be living in a self-built stone structure and his observation that the appellant had not obtained employment or had “little prospect” of obtaining such employment [56]. As I have noted, he does not appear to have asked the witnesses why the appellant was living in such a structure if he was receiving funds from the United Kingdom or why he considered living in such a structure preferable to the hostel where the evidence indicates he had lived when he first returned to Jamaica.
6. Moreover, the judge considered that obtaining employment was necessary to gaining re-integration into Jamaican society. Employment may be a factor but is not determinative; the facts required a more holistic analysis. At [69], the judge attempts a more comprehensive assessment but his finding that the appellant has “no cultural ties” to Jamaica appears to ignore the fact that both of his parents are Jamaican whilst the judge fails entirely to explain why he concludes that the appellant has “no understanding of the country”. This attempt at a wider analysis is, in my opinion, somewhat perfunctory; there is no doubt that the judge has been heavily influenced in his deliberations by the appellant’s claimed accommodation problems and his lack of employment. As regards employment, the lack of any proper job in the United Kingdom (the appellant has a bricklaying qualification but has no trade or regular occupation) does not appear to have been an obstacle to the judge finding that the appellant was socially and culturally integrated in the United Kingdom.
7. The grounds assert that the Presenting Officer at the First-tier Tribunal raised in submissions the inconsistency between the evidence of the appellant’s father and mother. I accept that those submissions were duly made (the appellant has not suggested otherwise) but no attempt has been made by the judge to address those submissions. The judge should have indicated why he accepted the photographic evidence and the oral evidence of the parents and, in the case of the latter, why he did so notwithstanding apparent contradictions between their statements. His failure to do so amounts to an error of law.
8. The fact that an appellant may have been deported and appeals from abroad should not have prevented the Tribunal from carrying out a robust and critical assessment of the evidence. Further, whilst I accept the mere fact that one may survive in a country for eight months may not necessarily mean one is re-integrated into it, the Tribunal should have been wary of possible attempts made by appellants living abroad to make their material circumstances appear worse than they actually are. In the present appeal, and for the reasons which I have given, I find that the decision should be set aside. There will need to be a new fact-finding exercise which is best conducted in the First-tier Tribunal.
Notice of Decision
9. This appeal is allowed. The decision of the First-tier Tribunal which was promulgated on 8 September 2016 is set aside. None of the findings of fact shall stand. The appeal should be returned to the First-tier Tribunal (not Judge Mitchell) for that Tribunal to re-make the decision.
10. No anonymity direction is made.

Signed Date 1 April 2017
Upper Tribunal Judge Clive Lane