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IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2022-000518
First-tier Tribunal No: HU/05918/2020
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On the 28 April 2023
Upper Tribunal Judge Kebede
DEPUTY UPPER TRIBUNAL JUDGE DAVEY
Secretary of State for the Home Department
Mr Eric George Young
(anonymity ORDER NOT MADE)
For the Appellant: Mr S Walker, Senior Presenting Officer
For the Respondent: Mr Ahmed, Counsel
Heard at Field House on 17 February 2023
DECISION AND REASONS
1. In this decision we shall refer to the Secretary of State as the Respondent and to Mr Young as the Appellant, reflecting the position before the First-tier Tribunal.
2. The Appellant, a national of Jamaica, date of birth 26 March 1972, appealed against the Respondent’s decision, dated 24 April 2020, to refuse to revoke a deportation order previously made against him under Section 32(5) of the UK Borders Act 2007and to refuse his human rights claim. .
3. For the purposes of the automatic deportation process, the Appellant was a foreign criminal who had been convicted of offences of more than twelve months, making a total period of 57 months imprisonment.
4. Under the provisions of Section 32(6) of the UK Borders Act 2007, the Secretary of State may not revoke a deportation order unless an exception under Section 33 of the Act applies.
5. Section 33(2) Exception 1 provides that removal will not take place if to do so would be a breach of the person’s Convention rights or the UK’s obligations under the Refugee Convention.
6. The latter part of the exception does not apply in any event but the Appellant has argued with reference to the first part that to do so would breach his human rights, namely his private and family life rights. The provisions of Section 117A-D of the NIAA 2002 relate to public interest considerations and the public interest question of whether an interference with a person’s right to respect for private and family life is justified under Article 8(2) of the ECHR.
7. In relation to foreign criminals, the additional considerations contained within Section 117C apply, such that the public requires the foreign criminal’s deportation unless either Exception 1 or Exception 2 within the Section apply.
8. Under Section 117C(6), in the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, as in the Appellant’s case, the public interest requires deportation unless there are very compelling circumstances, over and above those identified in Section 117C(4) under Exception 1 and in Section 117C(5) under Exception 2.
9. In considering the challenges by the Secretary of State which are extensively set out in the grounds of appeal, the substance of the criticism is that the judge failed to make clear findings of fact and reach sustainable conclusions upon the issues of Exception 1 within Section 117C of the Nationality, Immigration and Asylum Act 2002 and had failed to properly explain how he was departing from views previously expressed in the decision of First-tier Tribunal Judge Bristow of 26 March 2018.
10. In substance, it was said that the judge had not clearly explained how there were those very significant obstacles to the Appellant’s integration into Jamaica and had failed to identify very compelling circumstances over and above those with reasons.
11. We agreed with the Secretary of State that the reasoning was to a degree confused and ambiguous. Although clearly the judge set out the legal framework in which the appeal was to be considered, we found that he could be criticised to some extent for not clearly explaining how he reached the conclusions that he did and arguably erred in that respect. However ,we have considered whether or not such errors made by the judge amounted to material errors of law.
12. In the decision the judge identified the issues and the evidence which had been received from the Appellant and his wife C. The Appellant and C had provided witness statements and the Appellant had effectively updated the position in terms of the evidence over and above that which was before First-tier Tribunal Judge Bristow.
13. The particular matters relied upon, essentially to argue things had moved on since the matter was considered by First tier Tribunal Judge Bristow, were as follows. First, the Appellant’s health had deteriorated and not only had he been subject to aneurysms but also he had blood clots which had implications for his health and there was limited access to medical health treatment in Jamaica. In that respect, the judge had before him additional medical evidence not previously before the First-tier Tribunal, including a psychological report from Diana da Silva dated 9 November 2020 referred to at paragraph 23 and a report from Dr Khan dated 17 January 2020 referred to at paragraph 25. The former opined that if the Appellant was deported it was highly likely it would make his psychological symptoms worse and intensify their severity and chronicity as his mental state could abruptly change. The report concluded that there should be no change to the Appellant’s present situation, (paragraph 23 of the judge’s decision). Judge Juss also took into account the extent to which the Appellant was not only at the hearing treated as a vulnerable person but the general ability of the Appellant to handle the effects of physical separation from his wife and child and the impact upon himself through separation.
14. In addition the Appellant relied upon two independent social workers’ reports, dated 14 March 2018 and 24 February 2021, which dealt with concerns about the impact of separation from the Appellant on his son S, the latter being a more recent report not previously before the First-tier Tribunal, as the judge made clear at paragraph 23.
15. Judge Juss was entitled to conclude on the evidence that the impact on the relationship between the Appellant and S was significant and that the relationship would be “irretrievably and disproportionately damaged if he is deported”.
16. In terms of the impact of removal of the Appellant upon his wife of 25 years, the Appellant’s wife explained that she was the victim of violence in the workplace which had left her with spinal injuries and that the Appellant helped her with dressing and cooking and in the meantime she was caring for him and that the impact on both of them of deportation would be very significant.
17. The judge noted that the Respondent’s case was that the Appellant had socially and culturally integrated into the United Kingdom and that it was unduly harsh for the Appellant’s wife and son S to live in Jamaica. He went on to consider the remaining parts of the relevant exceptions to deportation.
18. Although not clearly expressed, Judge Juss effectively concluded, at paragraph 25, that there were very significant obstacles through the Appellant’s health and circumstances so as to engage Exception 1, part (4)(c) of Section 117C, in light of him being without a home and without a family support network in Jamaica and without any close relatives who would take on the responsibilities and support him on return. He also found, at paragraphs 26 and 35, that it would be unduly harsh on his wife and child to be separated from him upon his deportation.
19. Judge Juss then went on, at paragraph 27, to deal with the issue of very compelling circumstances for the purposes of Section 117C(6). He clearly discussed the legal test he was applying (paragraphs 30-32). The judge perhaps briefly put it in the following way (paragraph 33)
“I conclude that these are sufficient (with reference to facts and matters set out before) to outweigh the public interest in deportation. This is so either, both in themselves (because they are especially strong), but also when taken in combination with the other factors (such as the combination here between family and medical issues) that are implicated in this deportation decision.”
20. Judge Juss clearly considered the extent of the commission of offences by the Appellant, the clear public interest in removal and the absence of the Appellant having further offended after 2015. The judge referred to the case of NA (Pakistan) and found in the light of the Court of Appeal decision in HA (Iraq) that the circumstances set out in his decision in relation to the Appellant and his family were such as to outweigh the strong public interest in deportation and accordingly represented very compelling circumstances over and above that forming part of to the exceptions to Section 117C of the 2002 NIAA.
21. In the circumstances we concluded that Judge Juss had done enough to establish the material matters and that therefore there was no materiality in the errors made in dealing with the appeal and that the judge, for reasons given, was entitled to distinguish the circumstances that he was faced with before those before First tier Tribunal Judge Bristow in 2018.
22. We understand why the form of the decision attracted the Respondent’s attention but ultimately the proper considerations arising under Sections 32 and 33 were addressed and the judge was entitled to conclude that those matters demonstrated that deportation would be a breach of the Appellant’s private and family life rights, which led to the appeal being allowed.
The Respondent’s appeal is dismissed.
No anonymity order was sought nor is one required.
Deputy Upper Tribunal Judge Davey
No fee award is made.
Deputy Upper Tribunal Judge Davey