Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/03124/2015

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 28th March 2017
On 30th March 2017

Before

UPPER TRIBUNAL JUDGE LINDSLEY

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

M X
(ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr D Clarke, Senior Home Office Presenting Officer
For the Respondent: Ms C Hulse, Counsel, instructed by K & G Solicitors

DECISION AND REASONS

Introduction
1. The claimant is a citizen of China born on 11th February 1968. She has a son, JZ, born on 26th May 2000, who is a British citizen.
2. The claimant came to the UK in 1999 with a student visa. She had leave in that capacity until March 2004. At that point she was granted a work permit and had leave on that basis until October 2010. On 5th November 2009 she and her son were granted indefinite leave to remain in the UK. On 6th May 2011 the claimant was convicted in Cardiff Crown Court of conspiracy to produce a controlled drug, and a number of counts of assisting illegal entry and seeking or obtaining leave to remain by deception. She received a sentence of 42 months (3.5 years) imprisonment with terms of 12 and 9 months in respect of the immigration offences to run concurrently. She was also the subject of a confiscation order of £14,159.85. The claimant’s then partner and father of her child, CXZ, was convicted of identical offences and sentenced to a total of 6 years’ imprisonment, at the termination of which he was deported to China.
3. The Secretary of State made a decision to deport the claimant and signed a deportation order on 4th December 2014. An initial decision to deport and refuse her human rights claim was subject to a judicial review challenge and was withdrawn. On the 5th August 2015 the Secretary of State made a second decision to deport and to refuse her human rights claim. Her appeal against this decision was dismissed by First-tier Tribunal Judge RE Barrowclough in a determination promulgated on the 11th November 2015. However, after a hearing on 25th April 2016 Deputy Upper Tribunal Judge LJ Murry found that the First-tier Tribunal had erred in law and set aside the decision of Judge Barrowclough with no findings preserved. The decision was remade by Judge of the First-tier Tribunal C H O’Rourke in a decision promulgated on 5th October 2016 in which the appeal was allowed under the Immigration Rules.
4. Permission to appeal was granted by Judge of the First-tier Tribunal Scott Baker on 3rd January 2017 on the basis of a “Robinson obvious” point that she said meant it was arguable that the First-tier judge had erred in law in failing to give weight to the public interest in deportation.
5. The matter came before me to determine whether the First-tier Tribunal had erred in law
Submissions – Error of Law
6. In the grounds of appeal the Secretary of State contends in summary that the First-tier Tribunal erred in law by failing, when considering whether it would be unduly harsh for the claimant’s child to have to leave the UK, to consider the criminal history of his mother and her immigration history. The First-tier Tribunal erred in law in focusing solely on the child. This approach is wrong in light of the decision of KMO (section 117 – unduly harsh) Nigeria [2015] UKUT 543 and MM ( Uganda) [2016] EWCA Civ 450. Mr Clarke submitted orally that he accepted that he was in trouble however given that the appeal had been clearly also been allowed on Zambrano /Secretary of State for the Home Department v CS [2016] EUECJ C -304/14 grounds by the First-tier Tribunal, and no challenge was made by the Secretary of State to the conclusions of the First-tier Tribunal on this basis.
7. In a Rule 24 Reply the claimant argues that even if the “unduly harsh” error was made out (which for the reasons set out below it is argued that it is not) that it would not be a material error as the appeal was also allowed by the First-tier Tribunal under EU law because the claimant’s removal would be unlawful under Article 20 of the Treaty because it was found that she is the primary carer of a British citizen child and because it was found she does not pose a genuine, present and sufficiently serious threat to the requirements of public policy or public security. As such the claimant’s removal was found not to be in accordance with the law as set out in a Secretary of State for the Home Department v CS, and the appeal was properly allowed.
8. Secondly the claimant argues that it was not open to Judge Scott Baker to grant the Secretary of State permission to appeal on a “Robinson obvious” point as that principle is only open to favour claimants to ensure compliance with international law and is not available to assist the Secretary of State, and that the Secretary of State has not amended her grounds to adopt this grant in any case.
9. Thirdly the claimant argues that Judge Scott Baker correctly found that the grounds of the Secretary of State did not disclose an arguable error of law. The First-tier Tribunal refers to the public interest indirectly via the references by the Presenting Officer and in the Secretary of State’s skeleton argument. Further weight had been given to the public interest via the Immigration Rules which mirror s.117B Nationality, Immigration and Asylum Act 2002. The respondent had conceded that it would be unduly harsh for the claimant’s child to live in the UK without the claimant at paragraph 44 of the refusal letter. Weight was also given to the public interest in deportation and the claimant’s serious offending at paragraphs 16(i), 17(iii) and 18 of the decision.
Conclusions - Error of Law
10. As Mr Clarke has conceded, the Secretary of State has identified no error of law in the conclusions of the First-tier Tribunal which meant that the appeal was allowed on Zambrano / CS grounds. The appeal was clearly allowed by the First-tier Tribunal firstly and primarily on this basis. Any errors in relation to the “unduly harsh” test relevant to the Immigration Rules and Article 8 ECHR are therefore immaterial to the outcome.
11. Further at paragraph 18 of the decision it is clear that the First-tier Tribunal did in fact balance the public interest in the expulsion of foreign criminals against the claimant’s son’s best interests in remaining in the UK and found that it would be disproportionate for the claimant to be required to leave the UK, and full details of her offence and sentencing remarks are also set out in detail at paragraph 10 (ii) of the decision. As such I do not find that the First-tier Tribunal erred in the way contended by the Secretary of State.
12. The “Robinson doctrine” is one that means that the Court must use its power to ensure the UK’s compliance with the Refugee Convention and other international obligations including EU law. It is not one which could properly be relevant to granting permission to appeal to the Secretary of State saying that insufficient weight had been given to the public interest in a deportation appeal. The basis on which permission to appeal was granted cannot therefore lead to a finding of an error of law.
13. The grounds of appeal of the Secretary of State and the grant of permission to appeal therefore identify no material errors of law in the decision of the First-tier Tribunal, which in turn is therefore upheld.

Decision:

1. The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.

2. I therefore uphold the decision of the First-tier Tribunal allowing the claimant’s appeal.

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original appellant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings. I do so in order to avoid a likelihood of serious harm arising to the claimant’s minor child from the contents of this decision.

Signed: Fiona Lindsley Date: 28th March 2017
Upper Tribunal Judge Lindsley