Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/02953/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 5 December 2016
On 9 December 2016

Before

DR H H STOREY
JUDGE OF THE UPPER TRIBUNAL

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Mr Gregory Cooley
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr L Tarlow, Home Office Presenting Officer
For the Respondent: In person

DECISION AND REASONS

1. The appellant (hereafter the Secretary of State or SSHD) brings a challenge to the decision of First-tier Tribunal Judge (FtT) Dhaliwal sent on 2 June 2016 allowing on Article 8 grounds under the Immigration Rules and outside the Rules the appeal of the respondent (hereafter the claimant) against the decision made by the SSHD) on 7 December 2015 to make a deportation order against him by virtue of s.5(1) of the Immigration Act 1971.

2. The claimant is a citizen of the US aged 58. It appears he served in the US Air Force between 1977 and 1992, being stationed during this time in the UK. In March 1994 he was granted ILR as the spouse of Mrs G P Cooley. He has worked as a Defence Contractor and latterly taught for over six years at FE colleges and university. He and his wife have three adult children and three grandchildren all of whom are British citizens. He is registered disabled, suffering from a severe heart condition, chronic asthma, breathlessness, Type II diabetes, chronic bouts of angina and obstructive sleep apnoea which requires the use of a Positive Airways Pressure Device (CPAP) machine. He wears orthopaedic leg braces and uses a walking stick. He also suffers from severe depression. His GP describes his prognosis as poor. His ill health is such that he is cared for on a daily basis by his wife and requires help with day-to-day hygiene. He is on sixteen different medications on a daily basis.

3. The FtT Judge considered the claimant's case on the basis of the above facts. He noted first of all that the claimant could not meet the requirements of paras 399 or 399A of the Immigration Rules and so could only succeed under the Rules if able to show very compelling circumstances over and above those described in paras 399 and 399A.

4. The judge noted that on the public interest side of the balancing exercise, the claimant had pleaded guilty to 3 matters of sexual assault on two students whilst in a private tutorials and that the sentencing judge took a serious view of these offences, noting that the victim SW "has suffered a terrible impact. Her victim impact statement makes it clear that even now, years later, she feels scared and vulnerable". The FtT judge also noted that there remained a concern that the claimant does not accept full culpability in that "in his evidence, he did not appear to accept the extent and seriousness of his offending". Elsewhere the judge noted that the OASys Report considered the risk he posed to members of the public to be at a medium level. Whilst noting that the claimant had been in the UK for a very lengthy period, the judge observed that he had not been granted ILR until March 1994, which meant he had begun his relationship with his wife to be when his immigration status was precarious.

5. The judge found also that there would be no very significant obstacles to his (re-)integration in the USA because he was born and bred there , had a mother still living there, that he still held an American passport and the language spoken in the US was English.

6. On the claimant's side, the judge noted that there has been no offending prior to the three offences and nothing since. The claimant was hitherto a man of good character. The judge also noted that the OASys Report dated 20 April 2016 stated that there were no current concerns about a risk of harm and that, albeit the report considered the risk in the community to members of the public to be at a medium level, that risk would be reduced because the claimant would not be returning to work with students, and could deal with stress and depression through correct practices. He stated that the claimant did not pose a threat to others and that in his view "the risk of reoffending is low". Also to the claimant's credit the FtT Judge counted the fact that he had been in the UK for a very lengthy period (since at least 1994) that he was married to a British citizen, had raised three adult children and has three grandchildren and that he is socially and culturally integrated. Note was also made of the fact that he had worked in the UK for many years teaching and had also become an approved reading mentor for the Shannon Trust helping inmates read.

7. The judge also took account of the claimant's poor ill health. At paras 65 to 66 he concluded:

"65. I carefully carried out a balancing exercise and found that in the specific set of circumstances that I had before me, the public interest was outweighed specifically by the severe ill health of the Appellant and this alone amounted to very compelling circumstances. When added to the fact that the Appellant had all of his family in the United Kingdom and had not been to the United States at all since 1992, the public interest in deporting the Appellant was further outweighed and that the combination of factors together also amounted to very compelling circumstances which outweigh the public interest to deport on this occasion.

66. On that basis, the Appellant succeeded in his appeal against the decision of the Respondent under the Immigration Rules."

8. The judge went on to conclude that the claimant also succeeded on Article 8 grounds outside the Immigration Rules, setting out paras 68 - 70 that:

"68. Furthermore, the case of KMO (section 117 - unduly harsh) [2015] UKUT 00543 declined to follow MAB and held that the Immigration Rules, when applied in the context of the deportation of a foreign criminal, are a complete code. In looking at the public interest and at the aims of rules for deportation for non-UK criminals, I do of course take into account the seriousness of the offences and that the public are entitled to be protected from such offenders and that the openness of the United Kingdom in welcoming citizens from abroad cannot be extended to persons who pose a serious risk of harm to the United Kingdom public. However, this case is so exceptional in its particular facts and that the imperative of proportionality demands an outcome in the Appellant's favour. I am satisfied that his health issues are relevant to the issue of proportionality.

69. Whilst s.117B and s.117C set out statements of the public interest, it is of note that the I.D.I at paragraph 2.3.4 sets out factors which are capable of adding weight to the public interest I deportation. Those factors have been considered by me under the Immigration Rules and under Article 8. I am satisfied that the public interest in deporting the Appellant can be and has been outweighed specifically by his health issues and more so, when I consider that the Appellant has built up strong roots in the United Kingdom and wishes to continue to live in a country to be with his immediate family. Of course, the public are entitled to be protected from those citizens who commit serious offences whilst they are being allowed to live here in the United Kingdom but I am satisfied that the public would still expect this to be done fairly.

70. Therefore, in all the circumstances, I are satisfied that there are exceptional and very compelling circumstances in this case such that outweighs the public interest in deportation and I are satisfied that the Appellant has discharged the burden of proof to establish that his deportation would be contrary to his Article 8 rights."

9. The SSHD's grounds of appeal were fourfold. First it was contended that the judge's assessment that there was no risk of re-offending was flawed because she did not take any or sufficient account of the fact that the claimant committed his sexual assault against his students when he was already seriously ill:

"The judge fails to explain ? why the claimant's current health problems were materially different from those that existed at the time of the offences. The judge failed to take account of his own finding that the claimant did not accept the full nature of the offending, nor did his wife and the sentencing judge had observed that '[y]ou tried to cover up your offending by excusing it as accidental when it was clearly not'."

Second the grounds averred that the judge had erred in considering that the claimant's inability to reoffend was material to his success under para 398. Third, it was contended that the judge erred in treating the claimant's ill health as enough on its own to amount to very compelling circumstances - the claimant's was far from being a 'deathbed case' and there was no evidence to suggest he could not receive medical treatment in the US. Fourth, the grounds complained that the judge's reliance on the fact that all the claimant's family are in the UK and he has not been to the US since 1992 failed to factor in her findings elsewhere that it would not be unduly harsh for the claimant's wife to live with him in the US or further to be separated from him by way of his deportation (paras 42 - 43) and that there would be no very significant obstacles to his reintegration in his home country (para 47).

10. At the hearing the claimant stated that he wished to appear in person. I explained to him that my first task was confined to deciding whether the FtT Judge erred in law and that his and Mr Tarlow's submissions should focus on that issue, not on giving evidence. Mr Cooley directed my attention to several bundles of documents in which he had set out his arguments. He reiterated several of the points made in his written claims, in particular that the SSHD had been given sufficient evidence to establish that he had been in the UK for most of the period from 1976 as a serving soldier until 1992, that the deportation order made against him was prejudicial in nature and an excessive penalty as he had not been the subject of a court recommendation for deportation and his offences were minor and he was not a persistent offender, that he was not a danger to the public, that he had had a positive probation report, that he was deeply remorseful, that the SSHD had currently overlooked the significant challenges he faced coping with his long-term disabilities, that in the US he would be left completely vulnerable, unsafe and destitute, physically disabled and unable to support himself and he had no family to support him and he had no private pension or medical insurance. He pointed out that separation from his family in the UK would cause him permanent emotional damage.

11. Before me Mr Tarlow elaborated on the SSHD's four grounds, arguing that the judge had failed to take account of his own finding that there had been no essential change in the claimant's underlying medical conditions since his offence in 2014. The judge appeared, he said, to take no account of her own finding that neither the claimant nor his wife had accepted the full nature of his offending.

12. Mr Cooley submitted that the judge had given an independent assessment and it should not be interfered with. He said the SSHD's grounds contained a falsification of the fact in stating that he had been convicted of sexually assaulting three women, when it was two. He said he had taken full responsibility for his offences and was deeply remorseful. The offences occurred over two and a half years ago now. Contrary to what the SSHD alleged, his health had deteriorated since the time of his offences: he was to have a cardiac re-assessment and had been fitted with two additional hearing aids. Prior to sentencing the Probation Service had recommended a twelve month community order sentence but the prosecution had then asked for sixteen months. The offences had happened at a highly stressful time when he had overdosed in his medication.

13. Having heard the parties' submissions I reserved my decision so that I could make sure I had taken careful account of all the (lengthy) documentation.

14. I have decided that the FtT Judge did materially err in law and that her decision should be set aside. There were at least two material errors in the judge's determination. First, her statement at para 65 that "the public interest was outweighed specifically by the severe ill health of the [claimant] and this alone amounted to very compelling circumstances" was contrary to established case law principles governing ill health claims reliant on Article 8, GS (India) [2015] EWCA Civ 40 in particular. Whilst the evidence before the judge demonstrated that the claimant was in poor ill health, with a poor prognosis, it did not show that his was a deathbed case or that his matrix of medical conditions posed an immediate threat to his life. Further the judge did not find, nor would she have been able to find on the available evidence, that the claimant would be unable to receive adequate medical treatment back in the US. The judge completely ignored the objective evidence showing there would be adequate medical treatment identified by the SSHD in her refusal decision pp 10 - 11.

15. A second error made by the judge concerned her failure to factor into her assessment that the claimant had shown his circumstances came within para 398 her own earlier finding relating to the matter of whether it would be unduly harsh for the claimant or his wife to re-settle in the US. At paras 42 - 43 she stated:

"42. The United States is deemed to be a safe country, it is a country where the language spoken is English and the Appellant had lived there prior to him moving to the United Kingdom. Indeed, it appears that the Appellant's mother is still in the United States. If the Appellant were to be deported and the Appellant's wife decided to join him, other than a separation from her adult children and her grandchildren which would be difficult, inconvenient, undesirable, unwelcome and challenging for the wife of the Appellant, it would not, in my view, be unduly harsh.

43. For similar reasons, it would not be unduly harsh for her to live in the United Kingdom without the Appellant. She has been in the United Kingdom all of her life, speaks the language, knows the customs and has all of her children nearby."

16. There is nothing to indicate, when the judge turned to the question of whether the claimant had shown "very compelling circumstances", that she treated these findings as relevant considerations. In addition, her observations at para 65 that all of the claimant's family were in the UK was factually incorrect (on the claimant's own evidence he had a brother living there) and in any event, like her observation in the same paragraph that he had not been to the US since 1992, were plainly inadequate reasons, when read together with paras 42 - 43.

17. Having found a material error of law and set aside the decision of the FtT Judge, I turn to consider whether I am in a position to re-make the decision under appeal myself without further ado. When I asked the parties hypothetically at the hearing what they proposed I should do if I decided to set aside the FtT decision, both said I should decide it myself. Mr Cooley has submitted extensive documentation including more up-to-date medical information including the letter of 10 August 2016 from a Specialist Registrar in Cardiology, so I have all the evidence I need. This is not a case in which there is any real dispute about the facts.

18. The decision I re-make is to dismiss the claimant's appeal. The claimant does not dispute the judge's assessment that he cannot meet the requirements of paras 399 and 399A. To the extent that his written submissions appear to assert that he believes that on return to the US he would face destitution, I do not consider that opinion is consistent with the background information cited by the SSHD in her refusal letter. The only basis on which the claimant can succeed under the Rules, therefore, is if he is able to show very compelling circumstances over and above those arising under paras 399 and 399A.

19. Earlier in this decision I have identified factors which are properly to be weighed in the claimant's favour. To summarise, there is his very lengthy period of residence, his history of employment, his strong family life with his wife, children and grandchildren, his good character and absence of convictions prior to his 2014 conviction, his work in the community, helping prisoners to read, the fact that he has not committed any offences since 2014, his poor ill health and the fact that he does not pose a threat to the public and is not at risk of re-offending. However, I consider that the factors weighing against him possess considerably greater weight. Two sets of factors seem to me to be of particular importance in this case. First of all, his offences were clearly serious offences. That is not only apparent from the judge's sentencing remarks but from the fact that he received a total sentence of sixteen months' imprisonment for three counts of sexual assault (involving two women). This length of sentence was imposed notwithstanding the claimant's plea in mitigation the he had been under great stress and had overdosed on his medication. The fact therefore that since he was sentenced the claimant continues to rely on the same mitigation indicates that he has not fully accepted the nature and extent of his offences, which he continues to describe as "minor". It is true that he no longer poses a threat to the public and is not at risk of re-offending, but the public interest incorporates a deterrent element over and above the issue of re-offending.

20. The second set of factors is this. As noted earlier, the objective evidence as to his likely situation on return to the US does not bear out his claims that he will face destitution and denial of medical treatment. Nor does it establish that return there would be unduly harsh or pose very significant obstacles to him and his wife. The essential difference in this case between his situation in the UK and his situation in the US resolves into one main matter - that in the US he would be denied close contact with his adult children and grandchildren. However, because it is not unduly harsh to expect his wife to join him in the US, he will be able to enjoy family life in the US with his wife, where it is not unduly harsh for her to live with him if she chooses. His children are now adults and it is not suggested that he is financially dependent on them. His deportation will deprive him of regular contact with his grandchildren, but it will not prevent them from being able to maintain electronic contact with him and to visit him from time to time. In the particular circumstances of this case, I do not consider that such disruption would be disproportionate.

21. Taking these sets of considerations together with all other factors I am not satisfied that the claimant has established that there are very compelling circumstances over and above those described in paras 399 and 399A.

22. There is no basis for making a separate consideration of Article 8 since, as held by the Court of Appeal in MF (Nigeria) para 398 encompasses all the circumstances pertaining to a consideration of Article 8 at large. In any event, whether within paragraph 398 or outside the Rules and fully taking into account the guidance given recently by the Supreme Court in Hesham Ali (Iraq) v Secretary of State for the Home Department [2016] UKSC 60 I arrive at the same result.

23. For the above reasons:

The FtT Judge materially erred in law, her decision is set aside.

The decision I re-make is to dismiss the claimant's appeal.

No anonymity direction is made.

Signed Date

Dr H H Storey
Judge of the Upper Tribunal