Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: hu/06886/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 10th August 2016
On 24th August 2016

Before

UPPER TRIBUNAL JUDGE T KAMARA
DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

Mr PIUS [T]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Jaisri, Counsel
For the Respondent: Mr I Jarvis, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Ghana born on 14th November 1967. The Appellant arrived in the UK on 16th October 1990 using his brother's British passport. He remained in the UK using his brother's identity and travelled back and forth between the UK and Ghana using this identity. To the best of the Secretary of State's knowledge, this identity document was last used on 17th December 2000. In 1994 the Appellant met [LA], a British national born in Ghana who had a son by her previous relationship. On [ ] 1997 [LA] gave birth to the Appellant's son in the UK. The Appellant married [LA] on 31st March 2000. On 16th June 2000, in his own identity, he applied for a spousal entry visa and was granted this valid until 26th October 2001. However, he did not use this opportunity to regularise his stay in the UK, instead he allowed a friend to use his Ghanaian passport bearing the entry clearance visa with a substituted photograph to facilitate his admission into the UK. The Appellant returned to the UK with his friend on 17th December 2000 using his brother's British passport. On 6th April 2001 the Appellant was arrested by the police in his attempt to export stolen vehicles to Nigeria. During his interview under caution, he admitted to his true identity and his immigration history.
2. On [ ] 2007 [LA] gave birth to the Appellant's daughter. In between 19th September 2001 and 23rd January 2013 the Appellant accrued five convictions from eight offences and he had used the identity of Vincent [T] (i.e. his brother) in four convictions. On 6th May 2015 at the Inner London Crown Court, the Appellant was convicted of committing acts/series of acts with intent to pervert the course of public justice on two counts for which he was sentenced to two concurrent terms of twelve month imprisonment. On 6th July 2015 the Appellant was served with a notice of deportation decision. That decision advised the Appellant that Section 32(5) of the UK Borders Act 2007 required that a deportation order be made against the Appellant unless he could demonstrate that he fell within any of the specified exceptions set out in Section 33 of that Act.
3. On 18th and 25th August 2015 the Appellant's instructed solicitors made written representations setting out why the Appellant should not be deported. Those representations were considered by the Secretary of State and were responded to in a decision to deport and to refuse a human rights claim set out in detail on 22nd September 2015.
4. The Appellant appealed and the appeal came before Judge of the First-tier Tribunal Page sitting at Newport on 21st January 2016. In a decision and reasons promulgated on 1st February 2016, the judge found that the Appellant had discharged the burden of proof to show that he was entitled to come within the exception under Section 33 of the UK Borders Act 2007 because his deportation would amount to a disproportionate interference with his protected rights to family life and those of his family, in particular his two children. On that basis the appeal was allowed.
5. On 4th February 2016 the Secretary of State lodged Grounds of Appeal to the Upper Tribunal. The Secretary of State considered that in conducting the undue harshness assessment in paragraph 33, the judge had mischaracterised the nature of the Appellant's offending and failed to take into account the Appellant's poor immigration history, thereby rendering his findings unsafe.
6. On 27th June 2016 First-tier Tribunal Judge Simpson granted permission to appeal. Judge Simpson notes that having considered the judge's comments in paragraphs 23 to 31 of the First-tier decision, it was arguable that the judge had given too much weight to the evidence regarding the younger child's autism. Further, as to the older "child", given that his date of birth was [ ] 1997, he was 18 years old at the date of hearing and thus no longer a child.
7. It is on that basis that the appeal comes before us to determine whether or not there is a material error of law in the decision of the First-tier Tribunal Judge. For the purpose of continuity throughout the appeal process, albeit that this is an appeal by the Secretary of State, the Secretary of State is referred to herein as the Respondent and Mr [T] as the Appellant. The Appellant is represented by his instructed Counsel Mr Jaisri. The Secretary of State appears by her Home Office Presenting Officer Mr Jarvis.
Submissions/Discussion
8. Mr Jarvis indicates that the main thrust of the Secretary of State is a challenge to the assessment of proportionality carried out by the First-tier Tribunal Judge and the analysis of the phrase "unduly harsh". Mr Jarvis points out that at all times the judge had to do justice to the public interest. He sets out to us again the factual matrix of this case and the criminality carried out by the Appellant. He submits that balancing the public interest, the judge should have looked at the broader context as to why the Appellant was using his brother's passport and reminds us that the public interest in deportation of those who commit serious crimes goes well beyond depriving the offender in question from the chance to re-offend in this country: it extends to deterring and preventing serious crime generally and to upholding public abhorrence of such offending (DS (India) v Secretary of State for the Home Department [2009] EWCA Civ 544 at paragraph 37).
9. He contends that despite paragraph 33 of the decision, Judge Page has not engaged with the public interest and that the judge has underplayed the seriousness of the misuse of passports, and that the judge has mischaracterised the offence. He points out that the Immigration Court is not the Criminal Court and that there has been no proper engagement with Section 117B of the 2002 Act and that the balancing interest has not been properly carried out.
10. Mr Jaisri contends that the Secretary of State's submissions amount to no more than a mere disagreement. He points out that the history of this matter is fully set out at paragraphs 3, 5, 6 and 9 of the First-tier Tribunal Judge's decision, and at paragraph 9 the judge has made an assessment of the Appellant's claim noting the complete disregard of the United Kingdom's immigration laws.
11. Mr Jaisri indicates that there is no element stressed in the Notice of Refusal of particular weight being given to any expression of particular revulsion at the Appellant's conduct, and in fact he contends that the Immigration Judge has done a very good job in the manner in which he has considered the Appellant's offences and summarised them particularly in paragraph 24. He contends the Appellant's immigration history is fully acknowledged and that the elements therefore are highlighted sufficiently to have discharged the burden under Section 399 of the Immigration Rules.
12. So far as the "unduly harsh test" is concerned, he notes that these are applicable to each child individually and he accepts that the Immigration Rules would not apply to the elder child as he was aged 18 at the time of the hearing but they do apply to the Appellant's daughter, [K].
13. In brief response, Mr Jarvis refers us to paragraphs N5 to N8 of the Home Office bundle which he submits does not limit or essentialise the Secretary of State's assessment of the law and that twelve months' detention is enough to be deported unless there is an exception found under Section 33. He submits that there is nothing in the Notice of Refusal to obviate the approach adopted by the Tribunal and that the judge has not given sufficient weight to the view expressed by Parliament and that the public interest has not been properly considered. He does however accept that he is sympathetic with the position in which the children find themselves.
Findings on Error of Law
14. The approach to be adopted by a judge when considering whether the automatic deportation order made under Section 32(5) of the 2007 Act comes into play under Section 33 are fully considered by the judge. One of those, he quite rightly notes, are the Appellant's protected rights under the European Convention of Human Rights and in this case concentrate entirely on the rights of maintaining contact with his daughter [K] who is a UK citizen born in the UK and aged 8 at date of hearing and 9 at date of this appeal. The judge has, we consider, as Mr Jaisri has submitted, carried out a very thorough analysis. He has given full, due and proper consideration to the statutory guidance given under paragraphs 398 and 399 of the Immigration Rules and has gone on to give further consideration to paragraph 117C of the Nationality, Immigration and Asylum Act referring to the consideration in cases involving foreign criminals. The judge has considered the leading authority of KMO (Section 117 - unduly harsh) [2015] UKUT 543.
15. Thereafter, the judge has given full consideration to the facts of the Appellant's immigration history and the sentencing remarks of the trial judge. The judge has specifically noted that he does not minimise the seriousness of the offence of committing an act to pervert the course of justice, and has considered fully at paragraphs 24 to 26 the Appellant's immigration history and the Appellant's involvement with [K]'s life. The judge has noted that the Appellant has had a "genuine and subsisting parental relationship" which has been "significant and meaningful positive involvement in the children's life with a significant degree of responsibility for the children's welfare" as acknowledged by the Secretary of State in the notice of decision. He has further gone on to consider that [K] has been diagnosed as being on the autistic spectrum since she was 3 years old and has considered fully the medical evidence. The judge has further acknowledged the importance of the balancing exercise to be undertaken, and the importance of the public interest and has made conclusions at paragraph 33 that he was not satisfied the offences the Appellant had committed are such that the public interest in deporting the Appellant is so great to outweigh the best interests of the children having their father in the United Kingdom.
16. In such circumstances, we agree with the contentions made by Mr Jaisri that the submissions made by the Secretary of State, which are of a general nature, contending that the judge has mischaracterised the nature of the Appellant's offending and failed to take into account the Appellant's immigration history, are in fact wrong in that the judge has done so and that the submissions made by the Secretary of State amount to no more than disagreement with the finding of the First-tier Tribunal Judge. Each case turns on its own individual facts. The First-tier Tribunal Judge has followed a logical and consistent approach in setting out the facts of this matter and the relevant considerations to be undertaken as to whether or not the Appellant can, or cannot, take advantage of the exceptions of Section 33 of the UK Borders Act 2007. In such circumstances, his decision discloses no material error of law and the appeal of the Secretary of State is dismissed and the decision of the First-tier Tribunal is maintained.
Notice of Decision

The decision of the First-tier Tribunal discloses no material error of law and the appeal of the Secretary of State is dismissed and the decision of the First-tier Tribunal Judge is maintained.

No anonymity direction is made.

Signed Date 21st August 2016

Deputy Upper Tribunal Judge D N Harris

TO THE RESPONDENT
FEE AWARD

No application is made for a fee award and none is made.

Signed Date 21st August 2016

Deputy Upper Tribunal Judge D N Harris