Tribunal decisions

The decision

IAC-AH-CJ-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/04633/2016

THE IMMIGRATION ACTS

Heard at Birmingham Employment Centre
Decision & Reasons Promulgated
On 9th December 2016
On 5th January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

mr Hashmatulloh Ibrahimi
(ANONYMITY DIRECTION not made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr A Pipe (Counsel)
For the Respondent: Mr K Norton (Senior PO)

DECISION AND REASONS

1. The Appellant is a male, a citizen of Afghanistan, who was born on 10th May 1979. He appealed to the First-tier Tribunal against the decision of the Respondent dated against him on the basis that his presence in the UK is conducive to the public good.
2. The Appellant's appeal was heard by First-tier Tribunal Judge Hawden-Beal and promulgated on 16th June 2016.
3. At paragraphs 32 and 33 the judge noted the Appellant's immigration history, as one where he came to the UK in 2001, claimed asylum, was granted exceptional leave to remain until 2005, following which he applied for ILR, which was granted in 2007, even though he had conditions going back to 2003 and then how it was that the Respondent attempted to deport the Appellant, but that in 2010 it was considered that it would breach his family life with his then wife. The judge observed that the Appellant had a new relationship, and in spite of his previous imprisonment, which put him at risk of an early deportation, he went on to commit two further offences,
"The most recent of which was just below the so serious level so as to merit a custodial sentence. He would have been well aware, from his previous experience, how the Respondent views such actions and therefore cannot have been surprised when she did sign an order for his deportation" (paragraph 33).
4. The Grounds of Appeal, inter alia, assert that the judge did not consider whether or not it would be unduly harsh to expect either the Appellant's partner, or his son to remain in the UK without the Appellant, and no proper consideration was given to the impact upon these persons of the loss of family life with the Appellant. The judge also misunderstood the assessment of risk of recidivism given in an expert report. The judge categorised it as moderate whereas the report is said to have placed it at low and it was arguable that this tended to escalate the level of risk which otherwise was set out in the expert report.
5. On 10th October 2016, permission to appeal was granted by the First-tier Tribunal and on 1st November 2016, a Rule 24 response was entered by the Respondent whereby it was asserted that the judge had considered the relationship, the immigration history, and the offending of the Appellant and was satisfied that it was in the public interest that the Appellant be deported back to Afghanistan.
6. At the hearing before me on 9th December 2016, Mr Pipe, appearing as Counsel on behalf of the Appellant, relied upon the detailed Grounds of Appeal and submitted that he would wish to lay emphasis on three specific matters. First, in the assessment of whether the impact upon the wife and child of the Appellant would be unduly harsh, the judge had failed to take into account how his separation from them would affect them. The judge had accepted that there was a genuine and subsisting relationship between the Appellant and his wife and child. At paragraph 24 she had stated that she was satisfied that "the Appellant does have a genuine and subsisting parental relationship with his son. I find that he does live with his son, bathes and feeds him and plays a role in his life" (paragraph 24).
7. Given that the Appellant was clearly heavily involved in his child's welfare and upbringing it was incumbent upon the judge to consider the impact of the Appellant's removal upon his child. Indeed, the judge had observed that, "I find that it is unduly harsh for the child to live in Afghanistan" but that "it is clear that the Appellant is not the only person who can care for his son" (paragraph 24).
8. Furthermore, the case of Makhlouf [2016] UKSC had seen Lord Kerr state (at paragraph 40) that missing out upon one's ethnic background was a relevant consideration in circumstances where the child has dual British and Afghan heritage. Lord Kerr had referred to "dual ethnic background". The judge had found (at paragraph 25) that there was a general relationship with the Appellant's partner, and yet had failed to go on to consider the impact of his removal on his partner. Moreover, the Appellant's previous appeal against deportation was allowed (see paragraph 29) and his conviction then had only been for relatively minor traffic offences, and he had gone on to commit minor offences again. Second, there was the expert report of Lisa Davies (at paragraph 31) and the Grounds of Appeal noted (at paragraph 8) how the judge had misquoted this report by Lisa Davies who had regarded the Appellant's risk of reoffending as being low, as being at a higher threshold of "moderate", but this is unsupported by the expert report (see paragraph 10.5 of the expert report). Third, there was the question of the "best interests" of the child and the requisite assessment therein. There is no separate assessment made in relation to the child at paragraph 24 and no proper assessment of the impact of the removal on the child.
9. For his part, Mr Norton submitted that Grounds 1 and 3 really come together because they both refer to how it is unduly harsh for the Appellant to be removed in terms of the impact of that removal on partner and the child. However, the judge had stated (at paragraph 34) that, "it is unduly harsh to expect his partner and son to relocate to Afghanistan but not unduly harsh for them to remain in the UK without him", on the basis that none of the exceptions mentioned above apply here, and the judge was entitled to come to this conclusion. Whilst the Grounds of Appeal made reference to the assistance of a British child, it was clear that this did not prevent deportation taking place of the Appellant.
10. This is because in deportation cases the public interest element is significantly greater in relation to the maintenance of immigration control than it is in other removal cases. As far as Ground 2 was concerned, the expert report made a clear finding (at page 45 of section B) that there is a moderate risk of future offending and the judge had stated (at paragraph 31) that the expert, Lisa Davies,
"Is of the opinion that the Appellant is a moderate risk of future general (non-violent) offending which reduces to a low level if he continues to abstain from alcohol. He is also a low risk of violent reoffending, intimate partner violence and of serious harm to the public".
11. The judge was entitled to come to this conclusion. Indeed, if one looks at the earlier deportation order against the Appellant, at page 13 onwards, but especially at paragraph 81, the Tribunal accepted in 2001 that the Appellant was at low risk.
12. Here, however, the judge was correct to say that following his more recent offences, the Appellant could no longer be seen as being at low risk of reoffending, but that his risk had escalated because he continues to offend, albeit with community sentencing. All of these conclusions were open to the judge.
13. In reply, Mr Pipe submitted that one must not lose sight of the fact that Grounds 1 and 3 are pivotal in asserting that the material lacuna in the judge's determination was the failure to assess the impact of the removal on the child and the partner. First, the judge at paragraph 24 did not deal with the impact on the child. Second, at paragraph 26 the judge did not deal with impact on the partner. As far as risk is concerned, the expert does refer to there being "moderate" risk, but this is not an escalation of risk, and it was wrong of the judge to construe it as such.
Error of Law
14. I am satisfied that the making of the decision by the judge involved the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision. This is for the following reasons. First, the judge did not consider whether it would be unduly harsh to expect either the Appellant's partner or his son to remain in the United Kingdom without the Appellant. There is no such assessment either at paragraph 24 or paragraph 26 of the determination. There appears to have been inadequate consideration given to the impact upon both the Appellant's partner and his son of the loss of family life to them were the Appellant to be deported. Second, in terms of future risk, what this involves is an assessment of the risk of recidivism, and this is addressed in the expert report, and the expert assessed this as being at "low" level but the judge's interpretation of this (at paragraphs 31 to 33) is that the Appellant presents a moderate risk of future general offending in a way that suggests an escalation of the previous risk of reoffending.
Notice of Decision

The decision of the First-tier Tribunal involved the making of an error of law such that it falls to be set aside. I set aside the decision of the original judge. I remake the decision by applying paragraph 7.2 of the Practice Statement because this is a case where this matter needs to be returned to the First-tier Tribunal to be determined by a judge other than Judge Hawden-Beal in that the nature or extent of any judicial fact-finding which is necessary in order for the decision in the appeal to be remade is such that it is appropriate to remit the case to the First-tier Tribunal. The appeal is allowed to that extent.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Juss 4th January 2017