Tribunal decisions

The decision

IAC-AH- -V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/07613/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12 January 2017
On 17 January 2017

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Mr domingos neves
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr C Avery, Senior Home Office Presenting Officer
For the Respondent: In person

DECISION AND REASONS
Introduction
1. This is an appeal against the decision of First-tier Tribunal Judge P J Holmes, promulgated on 26 September 2016. Permission to appeal was granted by Upper Tribunal Judge Perkins on 25 November 2016.
Anonymity
2. No direction has been made previously, and there is no reason for one now
Background
3. On 7 January 2003, the respondent applied for asylum in the United Kingdom as an unaccompanied minor. The Secretary of State rejected the respondent's claimed age as well as his asylum claim, but granted 4 years' Exceptional Leave to Remain until 21 February 2007. The respondent was granted settlement on 17 May 2007.
4. The respondent has a number of criminal convictions. On 12 May 2008, he was convicted of driving without a licence and while uninsured and possessing a false or improperly obtained identity card or apparatus for making such cards. On 31 March 2009, the respondent was convicted of driving while disqualified, while uninsured, in breach of a suspended sentence and failing to surrender to custody. On 19 August 2015, the respondent was convicted of failing to surrender to custody.
5. On 7 September 2015, the respondent was convicted of two counts of having made/supplied articles for use in fraud and was sentenced to a total of 12 months' imprisonment. Owing to this last conviction the respondent was made the subject of a deportation order dated 12 January 2016. An accompanying notice of decision, also dated 12 January 2016, advised the respondent that he had no right of appeal. That decision was withdrawn and replaced with a notice of decision dated 14 March 2016.
6. In providing reasons for the respondent's deportation, the Secretary of State considered his claimed family life with his partner, their child together, his partner's child from a previous relationship, the child they were expecting and the respondent's three children from a previous relationship. It was not accepted that any of these children were either British or had resided in the United Kingdom for at least 7 years. Furthermore, it was not accepted that the respondent had a genuine and subsisting relationship with any of the children apart from N, then the youngest of his children. The Secretary of State was of the view that it would not be unduly harsh for the appellant's partner or any of the children concerned to remain in the United Kingdom were he to be deported. It was accepted that it would be unduly harsh for the respondent's children from an earlier relationship and that of his partner to accompany him to Angola.
7. With regard to the respondent's private life claim, it was not accepted that he met the requirements of paragraph 399A of the Immigration Rules because he had not been lawfully resident in the United Kingdom for most of his life. Furthermore, it was not accepted, owing to his offending, that he was socially and culturally integrated in the United Kingdom. Furthermore, his claim to very significant obstacles to reintegration in Angola was rejected owing to the respondent's return to Angola during 2010, using an Angolan passport he had obtained. It was not accepted that the facts of the respondent's claim amounted to very compelling circumstances.
8. Finally, the Secretary of State considered an implied Article 2 or 3 claim and rejected it with reliance on the reasons previously given for refusing the asylum claim. With regard to the grant of ELR, this had solely been for humanitarian reasons. Reference was also made to the respondent's visit to Angola in 2010.

The hearing before the First-tier Tribunal
9. At the hearing before the First-tier Tribunal, the respondent was not represented but gave evidence along with his partner (SK) and a friend (AA). The mother of his three eldest children (MM) provided a statement but did not attend. The judge found that at the time the respondent came to the United Kingdom, he was an economic migrant and that he was not a minor. He was further satisfied that the grant of ELR did not involve any recognition that the respondent was in need of international protection. Furthermore, during his oral evidence, the respondent admitted obtaining an Angolan passport and travelling there in September 2010. The judge did not find the respondent to be a reliable witness, except where his account was satisfactorily supported by other evidence. Essentially, the judge considered that it would be unduly harsh for the respondent's partner and three British children from an earlier relationship, with whom he had a genuine and subsisting relationship, to remain in the United Kingdom without him.
The grounds of appeal
10. The grounds of appeal in support of the application for permission to appeal argued that the judge made a material misdirection of law on a material matter. The Secretary of State contended, in essence, that the judge had ignored the conclusions in BL (Jamaica) v SSHD [2016] EWCA Civ 357 and should have considered the availability of support mechanisms when determining whether it was unduly harsh for the respondent's partner and children to remain in the United Kingdom if he was deported. It was said that the judge focused "solely" on the break-up of the family as being an unduly harsh consequence in itself. Reference was made to Lee v SSHD [2011] EWCA Civ 348 and PF (Nigeria) v SSHD [2015] EWCA Civ 251; in that it was argued that the judge made no findings as to the effect of the split. It was further argued that the judge, in finding that the appellant's offending was "at the bottom end of the scale," appeared to attach less weight to the public interest than is required.
11. Permission to appeal was granted, on all grounds, on the basis that it was "reasonably arguable that the First-tier Tribunal had insufficient regard to the public interest in making its decision."
12. The respondent served a Rule 24 response, in the form of a skeleton argument in which he resisted the Secretary of State's appeal. The respondent contended that the Secretary of State's arguments amounted to disagreement with the judge's decision and that no material error of law had been identified. It was argued that Upper Tribunal Judge Perkins failed to give reasons for granting permission to appeal.
The hearing
13. The respondent was accompanied by a Mr Kabba, a litigation friend. It transpired that Mr Avery had not seen the respondent's skeleton argument and I gave him time to consider it.
14. Mr Avery confirmed that there were two issues. Firstly, the judge's findings regarding undue harshness and secondly, his treatment of the public interest issue. Dealing with the second issue first, Mr Avery argued that the judge did not say much about the respondent's offending. At paragraph 22, the judge referred to him serving the minimum level of sentence making him liable to deportation and Mr Avery said that the judge started on the wrong basis. It was the respondent's 12-month sentence which triggered deportation and this is the Secretary of State's view of where the public interest lies. He referred me to headnote (1) from McLarty (Deportation - proportionality balance) [2014] UKUT 315 (IAC).
15. Mr Avery argued that there was no evidence from decision to show that the judge realised that public interest in deportation was the starting point. Instead he treated it as a neutral factor. He argued that the judge made no mention of the deterrent effect of deportation; he did not particularise the offences and their impact on the public or address why the Secretary of State might think that removal is appropriate. He argued that the judge started off with whether the effect of deportation was unduly harsh and thus started with the balance in the wrong place. Mr Avery contended that the judge's assessment was fundamentally flawed. While only at [19] was there any consideration of offences, mainly in terms of the appellant reoffending, this being only one factor and not the most important. Mr Avery submitted that the respondent had a poor criminal history previously before the index offence and that there had been no appreciation of that by the judge or of how that impacts the public interest. At [22] the judge failed to take into account the public interest and minimised the importance of it.
16. In relation to the second ground, Mr Avery argued that the judge erred in relation to the threshold for unduly harshness. At [22], he minimised the availability of state support to his partner, which he argued was a relevant factor. Furthermore, any effect of deportation must not merely be harsh but unduly so and the judge failed to apply this test to the circumstances of the partner. The judge's finding that it is a genuine relationship were irrelevant. If it was not, there would be no need for it to reach the stage of considering the issue of unduly harshness.
17. In response, Mr Neves confirmed that he understood Mr Avery's submissions. His own submissions resembled oral evidence. He explained that he had come to the United Kingdom as a child and had grown up without parents. His only offences related to driving including the 12-month sentence which was for car insurance fraud. He told me that his pre-sentence report said that his risk of reoffending was medium and that he had undertaken useful work while serving that sentence as well as when in immigration detention. He emphasised that he was also a member of the public, which was relevant to the public interest. He had made a mistake from which he had learned. The judge had listened to him.
18. Mr Neves also mentioned that his settled status had been restored after his appeal was allowed. As a result his youngest (5th) child was a British citizen. His 4th child was not British because Mr Neves, who was in prison when the child was born, had no settled status at the time of his or her birth. Otherwise, he agreed with First-tier Tribunal Judge Osbourne who refused permission to appeal. He accepted that the state could financially support his families in his absence, but emphasised that the judge was referring to emotional support. Mr Neves contended that his children's lives would be impossible without him, citing ZH(Tanzania).
19. Mr Avery accepted that the judge cited the correct test at [20] of the decision and reasons but argued that the starting point was that a person who commits an offence and receives a 12-month sentence should be deported and the judge got this wrong. Furthermore, it was not impossible for the respondent's children to remain in the United Kingdom. It may be harsh but it was not unduly so, given his criminal background, because three them did not live with the respondent and the other two were quite young.
20. At the end of the hearing, I reserved my decision on error of law.
Decision on error of law
21. I conclude that the judge's decision contained the following material errors of law.
22. The judge's self-direction on the public interest question was incomplete. While he acknowledges that he has had regard to MF (Nigeria)[2013] EWCA Civ 1192, in particular and sets out part 5A to the Immigration Act 2014 in various places, he has not demonstrated that he applied sections 117C(1) or (3) which state as follows;
(1) The deportation of foreign criminals is in the public interest.
(3) In the case of a foreign criminal ("C") who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.
23. The aforementioned error is material because at [27], after setting out the respondent's family circumstances at considerable length, the judge concludes that he is "satisfied, taking into account the public interest, that it would be unduly harsh." This finding gives the impression that the public interest in deportation was just one factor of neutral weight to be placed in the balance in assessing whether there was a breach of Article 8 in this case.
24. The judge's consideration of the Article 8 claim began at [19] with his assessment that the risk of reoffending was low and went onto consider whether the effect of the respondent's deportation would be unduly harsh on his family. Only in the penultimate paragraph did the judge set out section 117C, following which he says; "it follows from this, and my other findings above, that the public interest does not require the deportation of this appellant."
25. The aforementioned passage indicates the judge considered the public interest, as an afterthought, only once he had made up his mind regarding the issue of unduly harshness.
26. Furthermore, the judge repeatedly notes that the sentence involved was at the bottom end of the scale; [19], [22] and [27]; which is of obvious relevance owing to section 117C(2), but his reasons do not indicate that he has attached the appropriate weight to the public interest in deportation. As Mr Avery submitted, the judge started his consideration of the appeal with the issue of undue harshness when his starting point ought to have been the public interest in deportation of a person who was sentenced to 12 months' imprisonment.
27. Secondly, the judge did not identify why the effect of the respondent's removal on his partner and children would be not just harsh, but unduly harsh. The factors mentioned by the judge appeared to be no more than the consequences of splitting the family, which would be experienced in most instances. Here, I take into consideration what was said in PF (Nigeria) v SSHD [2015] EWCA Civ 251, at [43];
"I fully recognise that if the Judge's factual findings are well founded, there will be a real and damaging impact on his partner and the children: but that is a common consequence of the deportation of a person who has children in this country. Deportation will normally be appropriate in cases such as the present, even though the children will be affected and the interests of the children are a primary consideration."
28. The judge did not take into consideration the availability of support mechanisms or how the partner and children coped when he was serving his sentence in finding "What I find to be missing from the respondent's assessment is any sufficient consideration of how (the partner), with a young child to look after and another on the way, could reasonably be expected to manage in the long term without the practical and emotional support of her partner." There was an absence of findings regarding why the break-up of the family would have unduly harsh consequences.
29. Owing to the aforementioned errors, I set aside the judge's decision in its' entirety to be re-made. As I reserved my decision on the error of law issue, Mr Neves has not had the opportunity of giving further oral evidence, calling witnesses or submitting further documentary evidence. His submissions also alluded to issues concerning his own childhood which did not appear to have been explored previously. In these circumstances, I have decided to remit the appeal to the First-tier Tribunal to be heard, de novo, in the interests of justice.

Conclusion
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.
The appeal is remitted, de novo, to the First-tier Tribunal to be reheard at Taylor House (which is now the nearest hearing centre), with a time estimate of 2 hours by any judge except First-tier Tribunal Judge PJ Holmes.

Signed Date

Upper Tribunal Judge Kamara