Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/04181/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 28 February 2017
On 25 April 2017

Before

THE HONOURABLE MRS JUSTICE ELISABETH LAING DBE
UPPER TRIBUNAL JUDGE BLUM

Between

the Secretary of State for the Home Department
Appellant
and

Nasir Jamal Al-Sharifi
(anonymity direction made)
Respondent

Representation:
For the Appellant: Mr T Melvin, Home Office Presenting Officer
For the Respondent: Mr T Buley, Counsel instructed by Duncan Lewis & Co, Solicitors
(Harrow Office)

DECISION AND REASONS

1. This is an appeal against a decision of the First-tier Tribunal (“the FTT”) promulgated on 15 January 2016. The FTT consisted of Judge of the First-tier Tribunal Griffith (“the FTT judge”). The FTT allowed the appellant’s appeal against a decision of the Secretary of State dated 18 August 2015 refusing to revoke a deportation order which had been made on 26 February 2015. Permission to appeal was granted by the FTT (Judge of the FTT Brunnen) on 29 June 2016. Since much of the argument has turned on the precise terms of the grant of permission we should refer to that grant of permission. Paragraph 1 of the grant referred to the decision of the FTT. Paragraph 2 referred to the appellant’s application to revoke the deportation order and then continued:-

“2. The grounds on which permission to appeal is sought submit that the judge misdirected himself as to the applicable test to be applied when balancing the appellant’s Article 8 rights against the public interest.

3. The grounds submit that the judge applied the test of whether there were very significant obstacles to the appellant’s integration in Iraq. This is not arguable. It is clear that the test applied by the judge was that ‘it will only be in exceptional circumstances that the public interest in maintaining the deportation order will be outweighed by other factors’ (see paragraphs 75 and 85 of the decision). This test is derived from paragraph 390A of the Immigration Rules.

4. However it is arguable, in the light of paragraphs A362, A398(b) and 398 that the judge should have applied the test in the latter paragraph, namely that ‘the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A.’ Arguably this is a more stringent test than that applied by the judge and arguably if the judge had applied it he might have come to a different conclusion.”

2. The grounds of appeal submitted by the Secretary of State consisted of two grounds. Ground 1, under the heading “Ground one: Material misdirection of law – Article 15(c)”, was an attack on the decision of the FTT (in paragraphs 87 to 93 of its decision) that the appellant’s removal to Iraq would breach Article 15(c). There was a reference to the decision of the Court of Appeal in HF (Iraq) & Ors v Secretary of State for the Home Department [2013] EWCA Civ 1276. The ground went on:-

“The Secretary of State asserts that the availability of documentation is an operational decision and risk is not demonstrated by an inability to obtain these credentials. Clearly the appellant cannot be removed without the existence of relevant documentation.”

3. Ground 2 was described as follows, “Ground two: Material misdirection of law – very compelling circumstances”. The ground then argued that the test was a test of very compelling circumstances and that the FTT in effect had confused that test with the test of very significant obstacles. There was then a series of disagreements with the conclusions of the FTT judge in applying the relevant test. It is apparent from the grant of permission to appeal to which we have just referred that the Article 15(c) point was simply not referred to by Judge of the First-tier Tribunal Brunnen and there is a question about what can or cannot be inferred from that. In any event, the application for permission to appeal was not renewed on ground 1 to the First-tier Tribunal and Mr Melvin who has represented the Secretary of State today tells us that the grant of permission was read as grant of permission on grounds 1 and 2.

4. We have already said that the appellant Secretary of State was represented by Mr Melvin, a Home Office Presenting Officer. The respondent was represented by Mr Buley.

The Decision of the FTT

5. A is an Iraqi citizen. He was born in Kuwait in 1984. He is single with no dependants. He arrived in the United Kingdom when he was 15 as a dependant of his father. The appellant’s family are from Sulaymaniyah in the Kurdish part of Iraq. The appellant’s father lived for 30 years in Kuwait and married the appellant’s mother there. The whole family apart from the appellant are now British citizens. The appellant has not been to Iraq since 1995 and has only spent about four years there (when he was a child between the ages of 7 and 11) when the family lived in Baghdad. There was no evidence he had lived in Kurdistan. His father’s asylum claim was refused and certified on safe third country grounds. The appellant was due to be removed in 1999 but absconded. On 30 June 2010 the appellant and his father were granted indefinite leave to remain under the Legacy Scheme. On 24 July the appellant was served with notice of liability to deportation.

6. The appellant has twelve convictions for eighteen offences between 22 February 2001 and 19 June 2013. He received several short sentences of imprisonment. Many of the convictions were for offences of violence. His longest sentence was of eighteen months’ imprisonment. This is described in the decision of the FTT as a sentence for wounding with intent to do grievous bodily harm, but it appears from the judge’s sentencing remarks, which we have seen, that the sentence was imposed, in fact, for an offence contrary to Section 20 of the Offences Against The Person Act 1861. It was this sentence which gave rise to the decision dated 24 June 2013.

7. The appellant was diagnosed in April 2009 as having schizophrenia with dissocial traits. He has also a mild learning disability. He has been detained under the Mental Health Act 1983 more than once. The longest such period of detention was between 2008 and 2009 and lasted nearly a year. The most recent psychiatric report described him as “largely stable”. The report said it would be very difficult for him to live in Iraq with no support network. The services there would not be able to meet his needs. In June 2013 the appellant was living in the community. He was taking appropriate medication. In November 2014 he was said to understand the reasons for the medication and the need to take it. It was said that he was a risk to the public if he stopped taking his medication. The appellant does not live with his family but sees them regularly.
8. The appellant gave evidence at the hearing, as did his father, and three of his sisters. The appellant had never lived in Kurdistan or Iraq and had no identity documents from either place. The FTT recorded at paragraph 64 that the appellant relied on Article 8 and/or on Article 15(c). Article 3 was not relied on in the light of the high threshold which applies to it. The FTT in paragraphs 29, 30 and 31 set out the law which applied to the appeal. In paragraph 30 it said that under paragraph 398 of the Immigration Rules where a person claimed that their deportation would be a breach of Article 8 of the European Convention on Human Rights (“ECHR”), the Secretary of State would consider whether paragraph 399 or 399A applies and if not the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A. This was the position because as the FTT recorded in paragraph 30, the appellant’s sentence was a sentence of between twelve months and four years’ imprisonment. In paragraph 31 the FTT recorded that the circumstances to be considered in an application to revoke a deportation order are found in paragraph 390. Where paragraph 399 or 399A do not apply it will only be in exceptional circumstances that the public interest in maintaining a deportation order will be outweighed by other factors. The FTT correctly in those paragraphs recorded the test which applied under those different provisions of the Immigration Rules.

9. In paragraph 65 the FTT said that this was an appeal against a refusal to revoke a deportation order. It was an appeal to which paragraphs 390 and 390A applied. The FTT went on that if paragraphs 399 or 399A did not apply it would only be in exceptional circumstances that the public interest in maintaining the deportation order would be outweighed by other factors.

10. The FTT then analysed the facts. It noted that the UNHCR urged against forceful returns to Iraq until there are tangible improvements in security and human rights. At paragraph 75 the FTT considered the appellant’s claims under the Immigration Rules. It recorded that A fell within paragraph 398E because he had been sentenced to between twelve months and four years’ imprisonment, so if paragraph 399 or paragraph 399A did not apply it would only be in exceptional circumstances that the public interest in maintaining deportation would not be outweighed by other factors. The FTT then considered whether or not 399 and 399A applied and held that they did not.

11. The FTJ noted that there were discrepancies in the evidence given between the appellant’s sisters, but was satisfied that the appellant had a close relationship with his father and sisters and that they gave him emotional and financial support. The appellant had significant mental health issues. The support he could get in Iraq would not “come anywhere near that which was reasonably required”. The FTT took into account that the appellant would have no-one to turn to in Iraq, that he had been absent from Iraq for a long period, the general security concerns in Iraq, the appellant’s illness and his need for treatment. The FTT held that there would be very significant obstacles to the appellant’s reintegration in Iraq. That of course on its own as the FTT appreciated was not enough (see paragraph 79). The FTJ then applied the exceptional circumstances test. The FTT referred to SS (Congo) & Ors v The Secretary of State for the Home Department [2015] EWCA Civ 387. In paragraphs 81 to 84 the FTJ considered the facts. In paragraph 85 he said that the decision was “finely balanced”. He concluded in paragraph 85 that there were exceptional circumstances. He then considered in case he was wrong about that whether the appellant’s appeal could succeed under Article 15(c), having regard to the decision in AA in paragraphs 87 to 93 of the decision. He found that it did. It is unnecessary for us to refer to his reasons for reasons that will become clear.

Discussion

12. There was considerable debate before us this morning about how the grant of permission to appeal by FTJ Brunnen is properly to be understood. Mr Melvin submitted that the grant of permission had been understood by the Secretary of State as being a grant of permission to appeal against both the decision of the FTT on Article 15(c) and the decision of the FTT on Article 8. Mr Buley by contrast submitted that there was no grant of permission in relation to the decision on Article 15(c) and that if one read the grant of permission as a whole it was absolutely clear that what the FTJ was intending to do was to grant permission on a very narrow point relating to Article 8. For reasons which will become clear, we do not need to resolve the question whether or not there was a grant of permission to appeal against the FTT’s decision on Article 15(c), but before we leave this aspect of the case, we need to record two concerns about the debate which we have heard. The first is that it seems to us in the light of the apparent lack of clarity in the grant of permission that it is very important for judges of the FTT who are granting permission to appeal to make it absolutely clear whether or not they are granting permission on the grounds that have been argued in the notice of appeal. It is important for two reasons. First, it is important so that the appellant to the Upper Tribunal is not taken by surprise at the substantive appeal by being told that the appellant does not have permission to argue the certain point, but secondly, it is also important from the point of view of the respondent in the Upper Tribunal so that the respondent is clear, when the respondent prepares for the appeal, which points he or she is required to meet. The second concern that we would record is this. It seems to us that it is particularly important for those representing appellants in the Upper Tribunal when they receive a grant of permission to appeal to read it very carefully, in an objective way, and not in a way that sees what the reader wants to see. If, having read the grant of permission carefully the appellant to the Upper Tribunal is in any doubt about whether that party has been granted permission to appeal on a particular point it is absolutely essential that the application for permission to appeal is renewed to the Upper Tribunal.

13. Having made those observations, we turn to the argument about Article 8. Whatever else may be said about the grant of permission to appeal by the FTT in this case, it is absolutely clear to us that permission in relation to the Article 8 ground was only given on an extremely narrow point. That narrow point, it is clear to us, was whether or not there was a difference between the exceptional circumstances and the very compelling circumstances tests to which the Rules refer. It is clear to us that what the FTT intended to do was to give the Secretary of State an opportunity to argue that there was a difference between the two tests and that the FTT had erred in applying a less stringent test than the test which it should have applied.

14. It is also clear to us having considered Mr Buley’s helpful skeleton argument that the two tests are not in substance any different from each other. Mr Buley referred in his skeleton argument to paragraph 43 of the decision of the Court of Appeal in MF (Nigeria) v The Secretary of State for the Home Department [2014] 1 WLR 544 and the decision of the Court of Appeal in SS (Congo) & Ors v The Secretary of State for the Home Department [2015] INLR 683. We asked Mr Melvin for the Secretary of State whether he was submitting that there was any difference between the two tests. He said to us that in his view the exceptional circumstances test appeared to “have morphed” into the very compelling circumstances test. He accepted that the very compelling circumstances test did not require a higher threshold to be crossed than the exceptional circumstances test. That being so, it seems to us that the narrow point on which permission to appeal was granted on the Article 8 ground is really, without any disrespect to Judge of the First-tier Tribunal Brunnen, a non-point. It is clear from the paragraphs of the FTT’s decision to which we have referred that the FTT correctly directed itself in accordance with the language of the Rules which applied in this case and therefore that it applied the right test. In that respect it did not err materially in law and it follows that we must dismiss the appeal on the Article 8 ground.

15. We asked Mr Melvin whether he accepted that the Article 8 and Article 15(c) grounds were independent of each other, and he did. The upshot is that having dismissed the appeal on the Article 8 ground it is not necessary for us to deal with the Article 15(c) ground as, even if permission to appeal had been granted on that ground and even if the appeal had had merits, it could not have made any difference to our overall conclusion. We therefore dismiss the appeal.

Notice of Decision

The appeal is dismissed.

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 03 March 2017

Mrs Justice Elisabeth Laing DBE