Tribunal decisions

The decision

IAC-AH- -V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/06174/2020
[UI-2021-001341]

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On the 22 March 2022
On the 09 May 2022

Before

UPPER TRIBUNAL JUDGE KAMARA
DEPUTY UPPER TRIBUNAL JUDGE THOMAS QC

Between

Michael jordon aiken
(ANONYMITY DIRECTION NOT made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms A Jones, counsel instructed by Chris & Co Solicitors
For the Respondent: Ms J Isherwood, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction
1. This is an appeal against the decision of First-tier Tribunal Judge LK Gibbs, promulgated on 4 November 2021. Permission to appeal was granted by First-tier Tribunal Judge Dempster on 7 January 2022.
Anonymity
2. An anonymity direction was made by the First-tier Tribunal without explanation. Ms Jones informed the panel that she had made no such application. Considering the facts of this case and the circumstances of the appellant and his family members, we could see no reason for making such a direction.
Background
3. The appellant, a national of Jamaica, arrived in the United Kingdom with his mother, aged around two, in 1999. His mother’s subsequent asylum claim was refused. The appellant was granted indefinite leave to remain during 2007 as a dependant of his mother who was granted settlement under the Family ILR Exercise.
4. In 2019, the appellant was convicted of possessing controlled drugs with intent to supply and sentenced to 2 years and 4 months’ imprisonment. On 23 April 2020, the respondent made a deportation order by virtue of section 32(5) of the UK Borders Act 2007. An accompanying decision letter of the same date noted that the appellant had provided no evidence nor details to support his claim to have a partner and a child, that he did not meet the requirements for the private life exception to deportation and there were no very compelling circumstances.
The decision of the First-tier Tribunal
5. The First-tier Tribunal heard oral evidence from the appellant, his partner, mother and grandmother. The respondent accepted that the appellant had been lawfully resident in the UK for most of his life and as such, as far as paragraph 399A of the Immigration Rules was concerned, the sole issue for the judge was whether the appellant would face very significant obstacles to his integration in Jamaica. The judge made the following findings. The appellant had a genuine and subsisting relationship with his partner and his son who was born in 2017. It would not be unduly harsh either for the appellant’s partner or son to accompany him to Jamaica or to remain in the UK without him. There would be no very significant obstacles to the appellant’s integration in Jamaica and that there were no very compelling circumstances in play.
The grounds of appeal to the Upper Tribunal
6. In the grounds of appeal it was argued that the First-tier Tribunal judge failed to consider the arguments and background evidence, which were set out in the grounds of appeal to the First-tier Tribunal, and which related to the country and security situation when assessing whether there would be very significant obstacles to the appellant’s integration, whether it was unduly harsh for his partner and child to accompany him to Jamaica or whether it would be unduly harsh for them to remain in the United Kingdom without him.
7. Permission to appeal was granted on the basis sought, with the grant mentioning that the evidence which was attached to the grounds of appeal had not been referred to by the judge.
8. The respondent’s Rule 24 response, received on 22 March 2022 stated the following:

I. The respondent opposes the appellant’s appeal. In summary, the respondent will submit inter alia that the judge of the First-tier Tribunal directed himself appropriately.
II. The grounds assert that the judge should have had regard to the “background evidence” contained in the grounds of appeal. The respondent does not consider that this is an error of law. There is no indication in the determination that this was relied on by the appellant in the hearing, no indication that this “background evidence” was properly put before the judge, nor does the respondent consider that had it been put before the judge it would have made a material difference to the decision. The judge properly concluded that both the appellant and his partner would be able to find employment in Jamaica. It is entirely unclear how the security situation would have had any impact on the family of the appellant and his partner to provide support. The findings of the judge were sound and there is no error of law.
The hearing
9. Ms Jones made the following points in her brief submissions. The grounds were more accurately characterised as a failure to take account of material considerations. The judge made findings regarding whether Exceptions 1 or 2 to deportation applied without addressing the material relied upon in the grounds of appeal. That material was provided with the grounds to support the argument that there were very compelling circumstances to deportation. At the hearing before the First-tier Tribunal, paragraphs 16 and 17 of the grounds of appeal were withdrawn, leaving paragraph 18, which referred to the security issues in Jamaica, to underpin the argument that there were very compelling circumstances which outweighed the public interest in the appellant’s deportation. It was accepted that the permission application made no reference to very compelling circumstances and that counsel’s skeleton argument which was before the First-tier Tribunal did not address this point.
10. Ms Isherwood’s submissions in reply can be summarised as follows. Reliance was placed on the respondent’s Rule 24 response. There was no material error of law. There had been no challenge to the judge’s discrete findings. There was no background information in the appellant’s bundle, and it was not referred to during the hearing. There were no submissions made as to how the background situation affected the appellant’s partner and child. While the grounds of appeal and the appellant referred to this material, it was not expanded upon.
11. In response, Ms Jones added that the respondent’s CPIN did not appear in the appellant’s bundle. This was because of standard directions not to do so owing to restrictions on the sizes of electronic bundles. It was taken as read that a judge should look at the CPIN. Similar material to that relied upon by the appellant in the grounds of appeal was set out in the decision letter at some length.
12. At the end of the hearing, we announced that we accepted that the failure of the First-tier Tribunal to consider the background material amounted to a material error of law. Our reasons are set out below.
13. We invited submissions as to whether this was a suitable case for remittal to the First-tier Tribunal and ultimately, decided to do so given that the error of law infected all the judge’s findings and there is significant fact-finding to be undertaken.
Decision on error of law
14. As rightly argued in the permission application, there is no reference in the First-tier Tribunal’s decision and reasons to the background country material in respect of Jamaica. The focus of the judge both in relation to the exceptions to deportation as well as the existence of very compelling circumstances, was firmly on the appellant’s personal circumstances.
15. It was readily apparent from the decision letter as well as the appellant’s grounds of appeal to the First-tier Tribunal that the appellant was placing reliance on a potential risk of Article 3 harm. In the decision letter, under the heading “Other Human Rights Claim,” the respondent notes that the appellant claimed that his deportation from the UK would breach his rights under Article 3 of the ECHR because “he would be treated as an outsider in Jamaica, and possibly regarded as someone of wealth,” making him a target for criminal gangs. The respondent proceeded to consider this claim in some detail, with reference to her CPIN, “Jamaica: fear of organised criminal groups 2019.” The respondent concluded that there were no very compelling circumstances. The appellant’s grounds of appeal to the First-tier Tribunal addressed that conclusion head on from paragraph 14 onwards. What is apparent from those grounds, is that the appellant is relying on “significant security issues blighting Jamaica generally,” with references to states of emergency, high levels of crime and killings carried out by law enforcement officials. The appellant relied on various human rights reports as well as UK press reports on Jamaica which concerned the fate of recently deported Jamaican nationals. Furthermore, in his witness statement for the appeal hearing, at paragraph 2, the appellant stated that he continued to rely on his grounds of appeal and accompanying background evidence.
16. It is fair to say that First-tier Tribunal judge was not assisted by counsel for the appellant at the hearing in terms of identifying the relevant issues. There is nothing in counsel’s skeleton argument which indicates that the appellant was relying on very compelling circumstances, no reference to the background material at all and a focus on the appellant’s relationship with his partner and child. While the judge did briefly address the very compelling circumstances issue, it was disposed of in a single sentence with no reference to the country situation or any aspect of the appellant’s claim.
17. There also appears to be some confusion by the drafter of the grounds of appeal to the First-tier Tribunal, in that the background material is not preyed in aid in terms of Exceptions 1 and 2 to deportation, whereas in the permission application, it is. The submissions we heard in relation to the relevance of the background material was also similarly confused.
18. Regardless of the shortcomings of the way in which the appeal was prepared and presented, we consider that error of law in the judge failing to look at the background evidence was material.
19. The failure to consider the appellant’s circumstances against the backdrop of this material infected the judge’s findings as to whether there were very significant obstacles to the appellant’s integration (Exception 1), whether it was unduly harsh for the appellant’s partner and child to accompany him to Jamaica or unduly harsh for them to remain in the United Kingdom without him (Exception 2) as well as whether there were very compelling circumstances which outweighed the public interest.
20. In view of our findings above, the decision of the First-tier Tribunal is set aside, apart from the judge’s positive findings regarding the appellant’s relationship with his partner and child as summarised at [19] of the decision and reasons. Also preserved is the judge’s acceptance of the respondent’s concessions; firstly, that the appellant was socially and culturally integrated in the United Kingdom [7] and secondly, that he had been lawfully resident in the United Kingdom for more than half his life [10].
21. In deciding whether to retain the matter for remaking in the Upper Tribunal, the panel was mindful of statement 7 of the Senior President’s Practice Statements of 10 February 2010. Taking into consideration the nature and extent of the findings to be made as well as that the appellant has yet to have an adequate consideration of his appeal at the First-tier Tribunal, we reached the conclusion that it would be unfair to deprive him of such consideration.

Decision

The making of the decision of the First-tier Tribunal did involve the making of an error of on a point of law.

The decision of the First-tier Tribunal is set aside, with the exception of the matters set out at paragraph 20 above.

The appeal is remitted, de novo, to the First-tier Tribunal to be reheard at Hatton Cross, with a time estimate of half a day by any judge except First-tier Tribunal Judge L K Gibbs.

No anonymity direction is made.

Signed: T Kamara Date: 28 March 2022

Upper Tribunal Judge Kamara